law for removal of untouchability -...
TRANSCRIPT
LAW FOR REMOVAL OF
UNTOUCHABILITY
The era of new awakening, renaissance and social reforms dawned in
India in 19th century with the emergence of several social movements, the
credit of which goes to the English education, industrialisation, conversions
and development of representative institutions.
However, the problem of untouchability came to prominence in 1909.
This year witnessed the commencement of the Government oflndia Act, 1909.
It was but the inkling of the future which was to begin with representative
institutions. However, this perturbed the Muslim minority who felt that they
would be "outvoted" by Hindu majority1• Hence they requested to the
Government in 1909 not to enumerate untouchables as Hindus. The census
authorities deliberately or otherwise did not mention the untouchables as
Hindus, but as ''untouchables"2• The Hindus who were already disturbed on the
conversions of untouchables got one more jolt. They met in a conference held
in Haridwar in 1915 under the presidentship of Shri Munindra Chandra Nandi
where they formed an organisation of the Hindus called "Sarvadeshil Sabha",
the object of which was, inter alia, to eradicate untouchability3.
1. Zakaria, Rafiq : Rise of Muslims in Indian politics , P. 379 ( Somaiya Publications Pvt. Ltd., Bombay, 1970.
2. Ambedkar ,B.R, Pakistan or Partition of India ,p ,235 (Thacker and Co, Ltd , Bombay, Third Ed. 1946.
3. Ganvir, Ratnakar (Ed.) Bahishkrit Bharatatil Agralekh (Marathi) p. 100 ( Ratna Mitra Prakashan,Bhusaval, 1976).
99
Dadabhai Nauroji, the grand old man of India moved a resolution in the
Imperial Legislative Council in 1916 for the upliftment of untouchables but in
vain4. The Indian National Congress in its 1917 session held at Calcutta under
the presidentship of Mrs. Annie Beasant passed a resolution urging the people
of India to remove all the disabilities based on untouchability5.
Dr. B.R. Ambedkar thought the problem of untouchables was not only
humanitarian and social, but it was political as well. So he demanded separate
electorate with reserved seats while giving his evidence before the
Southborough Committee on franchise in 1919, but in vain. Again the same
demand was reiterated in the Round Table Conference held during 1930-32.
Ultimately, the British Government accepted the demand of separate electorate,
but it was not acceptable to Mahatma Gandhi, the leader of the National
Congress who thought that it may lead to the division of Hindu society into
caste Hindus and the untouchables. He started fast unto death in protest of
separate electorate to untouchables. Eventually Dr. B.R. Ambedkar constrained
to give up the demand of separate electorate and accepted reserved seats in
consideration of the assurance from them to uplift the untouchables. Both the
parties concluded an agreement to that effect, which is known as "Poona
Pact."6
Accordingly several Provincial Governments and States passed the anti-
untouchability Acts, during 1934 to 1946. Those provinces and states were -
4. Khairmode, C.B. ,Dr. Bhimrao Ramji Ambedkar ,vol Ip. 229 ( Pratap Prakashan Girgaon Bombay, 3rd Edition , 1978).
5. Report of the Thirty Second Indian National Congress, pp. 128 -29.
6. Keer, Dhananjaya, Dr. Ambedkar: Life and Mission, pp. 205 -14 (Popular·Prakashan Bombay , 3rd Edition, 1971 ).
100
the C.P. and Berar, Madras, Bombay, Malbar, Baroda, Mysore and Orissa.
When the Constituent Assembly was formed to frame a New Constitution for
India which was going to be independent sovereign democratic republic, the
remaining states including Bihar, East Punjab, United Provinces, West Bengal,
Hyderabad, Madhya Bharat, Saurashtra, Travancore-Cochin and Coorg who
passed anti-untouchability Acts in their respective States during 1948 to 1949.
All those laws were in force till the passage of the Protection of Civil Rights
Act, 1955.
In this chapter it is proposed to discuss in detail the whole law of
untouchability so as to know the legal provisions in their real perspective and
the flaws, if any, in the said law.
I. THE CONSTITUTION OF INDIA
India got independence on 15th August, 194 7. The Constituent
Assembly which came into existence on December 9, 1946 under the
presidentship of Dr. Rajendra Prasad constituted a Drafting Committee on
August 29,1947, under the Chairmanship of Dr. B.R.Ambedkar, who was
already included in the Cabinet of Pandit Jawaharlal Nehru on August 3, 1947,
as a Law Minister. The Draft of the Constitution became ready by l41h
November 1949 and the Constituent Assembly finally approved it on 26th
November 1949. It came into implementation on 26th. January, 1950.
The Constitution of India is the basic and supreme law of our country.
It provides, inter alia, for the abolition of untouchability and declares the
IOI
forbidden practice of untouchability as an offence. It provides the philosophy
of liberty, equality and fraternity which is conducive for the egalitarian and
humanitarian form of society. Therefore, it may be said that the Constitution is
the first and foremost law which, inter alia, provides for abolition of
untouchability.
Provisions with Special Reference to 'Untouchability"
(I) There is a Preamble to the Constitution of India, which reveals the
philosophy of the Constitution. It is as under:
"We, the People of India, having solemnly resolved to constitute India
into a sovereign, socialist, secular7 democratic Republic and to secure
to all its citizens-Justice: Social, Economic and Political, Liberty of
thought, expression, belief faith and worship.
Equality of status and of opportunity, and to promote among them all
fraternity, assuring the dignity of the individual and the unity and
integrity of the nation. In our Constituent Assembly this twenty-sixth
day of November, 1945, to hereby adopt, enact and give to ourselves
this Constitution."
This is a "firm resolve," "a pledge," "an undertaking'' or a commitment
of the Constituent Assembly in favour of the people of India including the so
called untouchables who are legally known as Scheduled Castes.
7. Added by the Constitution (42"d Amendment) Act., 1976.
102
No doubt it is a Charter of justice, liberty, equality and fraternity
granted to one and all, but it is especially significant from the point of view of
the so-called untouchables. It is a unique occasion in their life to witness such a
charter after some centuries past. Therefore, it is more significant and assumes
more relevance in their respect.
I
It is the philosophical foundation on which the whole edifice of the I
I
constitution is based. It is deeply rooted in the historic Objectives Resolution
passed by the Constituent Assembly on January 22, 1947 at the initiative of
Pandit Jawaharlar Nehru, which guarantees to all the people• of India, justice,
social, economic and political; equality of status of opportunity, and before the
law; freedom of thought, expression, belief: faith, wprship, vocation,1
I association and action subject to law and public morality 1 and promises t~·
provide adequate safeguards "for minorities, backward and tribal areas an~
depressed and other backward classes." The "ideal" embodie~ in the Objectives
Resolution is "faithfully" reflected in the Preamble to the Constitution, whicij.j
summarises the aims and objects of the Constitution."8
In Keshavanand Bharti v. State of Kerala9, the Supreme Court held th~f
I f ,1
the Preamble is a part of the Constitution. Though in ordinary Statute not mucliJ
importance is attached to the Preamble, all importance has to be attached to th~
Preamble in a Constitutional Statute.
8. Basu, D.D., Introduction to the Constitution oflndia. p. 20 (Prentice Hall of India Pvt. Ltd., 1976).
9. AIR, 1973, SC 1461.
103
Since the Preamble of the Constitution is a part of the constitutional
law, it serves as a key to interpret the Constitution as and when it is required. It
is expected to give such an interpretation to the constitutional provisions which
would conform with the ideal embodied in the Preamble. Of course, ''where the
language of the enacting sections is clear and unambiguous, the terms of the
Preamble cannot qualify or cut down that enactment."10
(II) Article 5 of the Constitution of India states that "As the
commencement of the Constitution, every person who has his
domicile in the territory oflndia and:
(a) who has taken birth in the territory oflndia, or
(b) either of whose parents was born in the territory oflndia, or
( c) who has been ordinarily resident in the territory of India for
not less than five years immediately preceding such
commencement."
According to the Citizenship Act, 1955 passed by the Parliament by
virtue of Article 11, any person can be a citizen of India in one of the five
modes. They are:
(1) Citizenship by birth,
(2) Citizenship by descent,
(3) Citizenship by registration,
. ( 4) Citizenship by naturalisation, and
10. Basu, D.D. Constitutional Law oflndia, p. 1 (Prentice Hall Of India Pvt. Ltd. , 1978).
104
(5) Citizenship by incorporation of territory.
Thus, all the persons irrespective of their caste, creed, sex or
religion, ordinarily domiciled in India at the time of commencement of the
Constitution, and born thereafter became citizens. Naturally all the ex
untouchables known as Scheduled Caste are citizens of this country as they are
not only domiciled in India at the commencement of the Constitution of India,
but from the commencement of India itse1£ However, they were deprived of
their rights and privileges as citizen of this country since the period unrecorded
by historians. Although they came to be treated equally just before the
commencement of the Constitution in some parts of India, they were not
regarded so throughout the country. It is the Constitution of India which
confers on all of them at the first the status of citizenship.
Under Part III "Fundamental Rights" Article 13 holds
importance. It reads:
1. A. All laws in force in the territory of India immediately
before the commencement of this Constitution insofar as
they are inconsistent with the provisions of this part, shall, to
the extent of such inconsistency be void.
B. The state shall not make any law which takes away or
abridges the rights conferred by this part and any law made
in contravention of this clause shall, to the extent of the
contravention, be void.
2. In this Article, "unless the context otherwise requires:
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a. 'Law' includes any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;
b. 'Laws ' in force includes laws passed or made by legislature
or other competent authority in the territory of India before
the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part
thereof may not be taken in operation either at all or in
particular areas."
4. Nothing in this Article shall apply to any amendment of the
Constitution under Article 368 11
Untouchability was observed as a "social Custom" throughout India tiU
the commencement of the Constitution. A Social custom is 'group pattern of
habitual activity usually transmitted from one generation to another." 12 It was
a vehicle of untouchability which has carried it since the latter's inception.
In the pre-Constitution era the Courts were not unanimous in upholding
the custom of untouchability.
In Shankarlinga Nandan v. Raja Rajeswari Dorai (1908). The Privy
Council upheld the exclusion of Shannars from a temple and granted damages
for its purification. 13 In Atmaram v. King Emperor (1924) the Court held that,
"when custom that has held for many centuries. ordains that an untouchable,
11. Inserted by the Constitution (24th. Amendment ) Act 1971.
12. The Random House Dictionary (1975).
13. Sankar Linga Nandan v. Raja Rajeshwar Doarai, 35 l.A.C 176 (I 908).
106
whose very touch is in the opinion of devout Hindus pollution, should not enter
the enclosure surrounding the shrine of any Hindu god and when an
untouchables with that knowledge deliberately enters and defiles it he has, in
my opinion committed an offence within the purview of Section 295, IPC."14
In Chatunni v. Appakuttan (1945) that Nairs were granted damages for
pollution and undertaking the purification ceremonies necessitated by Ezhavas
bathing in a tank as they had "no such right by reason of the usages of the
institution having the force oflaw."15
There are some exceptions also. In Govinda s/o Mukunda Mahar
(1902) the Bombay High Court reversed the conviction of a Mahar who had
drawn water from a well. 16 In Khajjan Chand v. Emperor (1926) the Lahore
High Court upheld the claim of two Chamars to fetch from a Public well and
reversed the order of the District Magistrate demanding security in anticipation
of breach of peace if they attempted to draw water from that well. 17 In Narhari
Damodar Vaidya v. Dr. B.R.Ambedkar (1937) the Bombay High Court held
that, ''the appellants have not established the immemorial custom which they
allege. Had they succeeded on this point, it might have been necessary to
consider whether the custom was unreasonable or contrary to Public Policy."18
According to C.K. Allen the test of a good custom is (A) it must be based
on reason, (B) it should not be against the public policy, and (C) it
14. Atmaram v. King Emperor AIR 1924 Nagpm, 121.
15. Chathuni v. Appukuttan AIR 1945, Madras 232.
16. Govinda v. Mulamda, Bombay 1902 (Quoted by Khaivmode- in Dr. Bhimrao Ramji Ambedekar, Vol I, p. 222, Bombay 1978).
17. Khajan Chand v. Emperor, AIR 1926, Lahore 683.
18 .Narhari Damodar Vaidya v. Dr. B.RAmbedkar.
107
should not be against the fundamental principle of law or statute. 19 It is
submitted that the custom of untouchability cannot fulfil the said tests or
conditions, as such it is irrelevant and void.
It is an the fitness of things to see what the judiciary and commentators
have to say in this respect. In Dashratha Rama Rao v. State of A.P .(1961 )it
was held that , "even if there was a custom which has been recognised by law
that custom must yield to a Fundamental Right. "20 The custom which imposes
unreasonable restriction on the Fundamental Right is inoperative. According to
Prof. V .N. Shukla, "It is not the act of the legislature or subordinate legislation
alone, but custom and having the force of law are also invalidated. Even
binding custom , if they are in derogation of the fundamental Right, shall
become inoperative after commencement of the Constitution."21
Although the custom of untouchability has been explicitly abolished
under Article 17 of the Constitution, it seems that even otherwise also it would
have been inoperative under Article 13 itself, being contrary to the
Fundamental Right. What Article 17 does more is,· it declares that the said
custom is not only inoperative but an offence punishable by law. It leaves no
room for any interpretation and it alarms to the society that untouchability is an
offence. Thus article 13 at the very beginning of the Fundamental Rights cuts
down the customary source of untouchability.
19 Allen , C.K., Law in the Making, p. 156, 150 (Oxford University Press London , ih Edition, 1964).
20. Dasharatha Rama Rao v. State of AP, .A.LR 1961, S.C. 564 (570).
21. Shukla ,V.N., The Constitution of India, p. 25, Edited by Professor D.K. Singh (Eastern Book Company, Lucknow , 61
h Ed, 1975).
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(2) Article 15(1) states that,
"the State shall not discriminate against any citizens on grounds only of
religion, race, caste, place of birth or any of them."
The State, according to Article 12, includes "the Government and
Parliament oflndia and the Government and the legislature of each of the state
and all local or other authorities within the territory of India or under the
control of the Government oflndia."
The expression "discriminate against" means ''to make an adverse
distinction with regard to, or distinguish unfavourably from others."22
(a) Thus Article 15 (!)prohibits "the state" from discriminating against
any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them and the remedy is available only to citizen, if ''the State" discriminates
so.
The discrimination would be void if it is based only on caste
consideration and not on economic and social backwardness. The policy of
reservation in favour of caste, under article 15(4), will not be unconstitutional,
if the members of a caste are socially and educationally backward. 23 (b )Article
15(2) states, ''No citizen shall on grounds only of religion, race ,caste, sex,
place of birth or any of them be subjected to any disability, liability, restriction
or condition with regard to (a) access to shops, publics restaurants, hotels and
places of public entertainment or (b) the use of wells, tanks, bathing ghats
22. Oxford Dictionary.
23. Added by Constitution (lst Amendment) Act ,1951.
109
and roads and places of publics resort maintained wholly or partly out of state
funds or dedicated to the use of the general public. "24
The right conferred by clause( 1) is available to the citizens against the
state only whereas the right under clause(2) is available to the citizens against
any person. The present clause prohibits any person from subjecting any
citizen to any disability, liability, restriction or condition with regard to access
to shop etc., on grounds only of religion race, caste, sex or place of birth or
any of them. However, "a private well or tank does not come within the
meaning of this clause: A burial ground shall be a place of public resort if it is
maintained by the state, it must be dedicated by the owner to the use of the
general public."
The discrimination on the ground only of religion, race, caste, sex place
of birth or any of them barred. There is no mention of grounds such as
profession, language health, morality and indecency. Probably there may be
discrimination only on these grounds unless such discrimination is barred
under some other provision.
Although it is a general clause, it specially relates to the untouchables
who were subjected to discrimination only on the ground of their "caste"
which was supposed to be lower than all the caste Hindus. Thus it restrict any
discrimination against such untouchable castes with regards to (a) access to
shops, public restaurants, hotels and places of public entertainment or (b) the
use of wells, tanks, bathing ghats, road and places of public resort maintained
by wholly or partly out of state funds or dedicated to the use of the general
24. Shukla, V.N, The Constitution of India, p. 44, Edited by Professor D.K.Singh, (Eastern Book Company, Lucknow, 61
h Edition , 1975. 110
public. This article opens one of the areas of segregation of the untouchables
by the caste Hindus.
(3) Article 16(1) states, "there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under
the state". However, the state is empowered under clause(4) of Article 16 to
make any provision for the reservation of appointments or posts in favour of
any backward classes which in the opinion of the state is not adequately
represented in the services under the state . The Constitution maintains status
quo as far as " the operation of any law which provides that the incumbent of
an office in connection with the affairs or any religious or denominational
institute or any member of the governing body thereof shall be a person
professing a particular religion or belonging to a particular denomination."
(4) Article 17 of the Constitution states, 'untouchability' is abolished
and its practice in any form is forbidden. The enforcement of any disability
arising out of 'untouchability' shall be an offence punishable in accordance
with law.
The historical struggle for the abolition of untouchability bore fruits.
Constitutionally the evil is abolished. A major section of society which was
subjected to inhuman treatments has been freed by the supreme law of the land
once for all. It is a landmark in the socio-religious and politico- legal history of
India.
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(A) "Untouchability" is abolished under the Constitution; but the term
has nowhere been defined. While discussing on the provision of the said
Article some of the members of the Constituent Assembly expressed their
opinion that the term " untouchability" requires clarification. Mr.
K.M.Munshi in his attempt to clarify the term in question said that " The word
'untouchability' is put purposely within inverted commas in order to indicate
that the union legislature when it defines 'untouchability' will be able to deal
with it in the sense in which it is normally understood. 25 The Hon'ble Sardar
Vallabhbhai Patel while enlightening by his opinion said, " the removal of
untouchability is the main idea and if untouchability is made illegal or an
offence, it is quite enough". If untouchability is provided for in the
Fundamental Rights as an offence, all necessary adjustment will be made in the
law that may be passed by the legislature.26 Thus the constituent Assembly left
the matter on the Central Legislature to define it. But the Central Legislature
also did not provide its definition in the "Protection of Civil Rights Act,
1955". In his attempt to define untouchability, Mr. Justice Sreenivasa Rau
observed that "the subject matter of Article 17 is not untouchability in its
literal or grammatical sense but the practice as it had developed historically in
this country". Thus, "untouchability" signifies the disgraceful Hindu Social
custom observed in respect of the so-called untouchables as a matter of
misconceived religious phenomenon by the caste Hindus.
"Untouchability" is abolished in the sense it is annihilated or obliterated
or put to an end or nullified. As the custom of untouchability has been
25. Constituent Assembly Debates, Vol Ill, p. 413.
26. C.A.D,Vol.III, p. 434 -35.
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overruled by the law of the Constitution explicitly , it ceased to be a custom
now. As such no defendant, would raise a plea of custom in a case against him
under the PCRA or under any law.
From the positive point of view, with the end of the custom of
untouchability a new era was expected to usher in, the era of liberty, equality
and fraternity in the society as a who le. The end of untouchability could clear
the way for the realisation of the philosophy of the constitution enshrined in
the preamble.
(B) Further, the said Article states that, "its practice in any form is
forbidden", "practice" means performance. Here practice means the
performance or commission of the forbidden act of untouchability;
"Forbidden" means and indicates a command to refrain from doing some
action.27 "Any Form" includes any form and" every form"28• Thus the
Constitution commands to refrain from doing or performing the prohibited act
of ''untouchability" in any form, whatsoever it may be. "Any Form" is an
inclusive word, which comprises all the forms and patterns of untouchability.
"It would seem to include any invidious treatment associated with the victims
membership or origin in an untouchable group, even if the treatment did not
involve avoidance of pollution-for example, restriction on the dress or
ceremonials of untouchables. It would seem to extend to such private social
27. Random Dictionary of English language.
28. It was suggested by Mr ll V.Kamath that the word "every'' should be put in after "any". Sardar Patel said that "untouchability'' in any form is a legal Phraseology and no more addition is necessary, C.A.D Vol,III, p. 434-35.
113
conduct as avoidance of commensuality and observance of purification after
contact."29 Therefore, in its broader scope each and every form of
"untouchability" is a forbidden act. The Protection of Civil Rights Act provides
punishment for certain Acts, but it does not mean that all ''those acts
contemplated in the PCRA" exhaust the scope of untouchability.
(C) Article 17 further states that " the enforcement of any disability
arising out of 'untouchability' shall be an offence ". "Enforcement" means the
act of enforcing or compelling the obedience to get something done. 30 " The
Enforcement of disabilities includes more than actual physical prevention of
the use of facilities or compulsion of customary deference. The untouchability
(offences) Act makes it an offence to molest, injury, annoy, obstruct or attempt
to obstruct the exercise of any right accruing to a person by reason of Article
17. Even loud words by worshipper frightening an untouchable boy to go out
of a temple have been held to constitute an offence under an Act. 32 According
to Prof. Marc Galanter, it is not clear whether it would be "enforcement of a
disability to persuade an untouchable voluntarily to abide by an invidious
usage."33 It is difficult to understand as to why he is "not clear" whether
persuasion amounts to enforcement or not. It is the "practice "of untouchability
29. Galanter, Marc: Untouchsbility and the Law J.Michael Maha (Ed.) The Untouchables in Contemporary India. p, 246.
30. Random House Dictionary of English Language, 1975.
31.Galanter Marc, Untouchability and the Law. J. Michael Mahar (Ed). The Untouchables in Contemporary India, p. 246 (Arizona ,U.S.A, 1972).
32. State v. Kanu Dhanna, Al.R 1955, Born, 390.
33. Same as 31.
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which is an offence; the "practice" 1s material; whether it is done by
"enforcement" or "compulsion" or "performance" or "persuasion" is
immaterial. Here stress should be given on "practice" and the "intention"
behind the Act. Another fact is that the practice of untouchability is criminal
offence. Therefore, any criminal offence done even with persuasion will be an
offence. One cannot persuade a widow to perform the custom of Sati. 34
Similarly one cannot persuade a woman to profess prostitution35 or one cannot
persuade to accept dowry36 or to be a bonded labour37• No human being intends
to be victim of any system or custom or act adverse to his benefits. Nobody has
any right to persuade other to be victim of some forbidden act. Nobody has any
right to exploit one's ignorance or minority. Persuasion may not be coercion
but certainly it amounts to undue influence and fraud if it is done with
wrongful intent. 38 Therefore, it is submitted that so far as Article 17 is
concerned "persuasion" amounts to "enforcement".
The word "disability" includes any incapacity, disqualification,
restriction, prevention, liability, obstruction, molestation , insult, injury or
boycott. The enforcement of "any" disability "arising out of' untouchability
34. Offence is punishable mder Section 306, IPC.
35. Offence is punishable mder Section 3, 4, 56.
36. Offence is punishable under Sections 3 and 5 of the Dowry Prohibition Act, 1961.
37. The Bonded Labour (Abolition) Act 1976.
38. The Contract Act 1872. (Similar Provisions, hence analogy can be drawn from them).
115
shall be an offence. It is submitted that the "enforcement of any disability" is
not materially different from the "practice in any form".
(B) "Offence" means "any act or omission made punishable by any law
for the time being in force"39• Thus any practice, including the enforcement of
any disability arising out of "untouchability" "shall be" an offence, punishable
in accordance with law. Article 17 not only forbids "untouchability" but it
declares 'untouchability' as a whole an offence punishable by law.
However , the responsibility of making the law providing punishment
for the offences of untouchability was bestowed upon the Parliament by
Article 35 of the Constitution. But, the Parliament did not pass the "uniform"
law till 1955. therefore, the "Law in force" were to govern the offence of
untouchability ."Law in force" included laws passed or made by a Legislature
or other competent authority in the territory of India before the commencement
of the Constitution.40 Thus all the laws passed by various state legislatures in
the pre-constitution era remained in operation till 1955.
(E) The enforcement of any disability "arising out of' untouchability is
an offence. For constituting an offence under Article 17 of the Constitution the
disabilities that are enforced must originate out of ''untouchability". Thus there
is "root and fruit" relationship between untouchability and the disabilities. It
is, however, not necessary to prove the 'Intent' or 'mens rea' in such cases.
What one has to do is simply to establish the relationship between
'untouchability and disabilities' that is all.
39. Code of Criminal Procedure, 1973, Section 2 (n).
40. The Constitution oflndia, Article 13 (3) (b).
116
(F) While analysing the provisions of this Article, Prof. Marc Galanter
observes that, "the Article refers to two overlapping classes of conduct : acts
constituting the "practice of untouchability in any form" and acts which are the
"enforcement of any disability arising out of "untouchability". The first is
apparently broader than, but not fully inclusive of the latter, while all the
former are 'forbidden", only the latter are declared on "offence punishable in
accordance with law."41
However, the construction given by Marc Galanter to Article 17 as
"practice" part and "enforcement" part to one and the same Article seems to be
too technical and undesirable.
Firstly, Article 17 has a historical background . Almost all the reformers
and their movements strived for the removal of untouchability hook and nook,
from the Hindu social system, so as to secure social justice to all the people of
India. If the Article is divided merely on technical ground between its
"practice" part which is just forbidden and its "enforcement" part which is
punishable it would defeat the very purpose of the provision itself.
Secondly, if the practice part, being unpunishable remained m
practice, it would be addition to ambiguity and loopholes; and ultimately of no
use. The framers of the Constitution must have never thought to allow such
construction which gives rise to a loophole.
Thirdly, the word 'practice in any form" is inclusive of "enforcement of
any disability' arising out of untouchability. Untouchability , at least in its
41. Same as 33. 117
overt fonn, exists in some "form", "practice" and "enforcement of certain
disabilities'. When it is said that 'untouchability' is abolished it can be said that
it has been abolished with all its forms, practices and patterns of enforcement
of disabilities.
Fourthly, "untouchability" as a whole is a "forbidden" act. Therefore,
any act contemplating, conveying or constituting untouchability is an
"Offence" punishable by law. Any overt or covert act manifesting hatred,
contempt and humiliation of untouchable arising out of "untouchability" is an
"offence" punishable by law.
Finally, the construction given by Prof Marc Galanter to this Article
seems to be against the rule of construction itself. Article 1 7 is entirely one
Article , without any clause , sub-clause or proviso therein and it deals only
with one subject i.e. untouchability. Therefore, it should be construed as a
whole. Moreover, it is a rule of interpretation that one has to make such
construction which shall suppress the mischief and advance the remedy. 42
(G) Now, it would be desirable to see in brief the difference between
the provisions under Article 17 and Article 15(2).
( 1) Article 17 contains a provision m respect of untouchables
whereas Article 15(2) contains the provisions in general, applicable to
touchables and untouchables alike.
42. Basu. D.D., Commentary on the Constitution of India ,Vol .I, ( S.C.Sarkar and Sons, 5th Ed., 1965).
118
(2) Article 17 deals with "untouchability" enforced on the
untouchables, whereas Article 15(2) deals with "discrimination" in
respect of any person.
(3) Article 17 states enforcement of disabilities 'arising out of
untouchability' is an offence , while Article 15(2) states the
grounds of religion, race, caste, sex, place of birth or any of them.
( 4) Article 17 forbids all forms and practices of untouchability in any
field. Its scope is wider than Article 15(2) which prohibits any act with
regard to access to shops, public restaurants, hotels and places of public
entertainment or the wells, tanks, bathing ghats, roads and places of public
resort.
(5) Under Article 17 remedy is available against any person or
institution or the state but under Article 15(2) the remedy is available
only against the state and not against the private individuals.
(6) By virtue of Article 35(2) the Parliament alone, not the state
legislatur~ is empowered to pass the law providing punishment for the
offences contemplated under Article 17. In respect of 15(2) the
Parliament as well as the state legislatures can pass the law for
provmg punishment for the discriminatory acts contemplated under
it.
119
(7) The nature of Article 17 is prohibitive and punitive whereas the
nature of Article 15(2) is merely prohibitive. Article 15(2) does not
state that the forbidden acts under it constitute offence as such.
(5)Article 23(1) enumerates that,
"Traffic in human beings and 'begar' and other similar forms of forced
labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with law."
This Article aims at "recognition and restoration of the dignity of
man."43 Traffic in human beings means to deal in men and women like goods,
such as to sell or let or otherwise dispose of It would include traffic in women
for immoral purposes. This evil is governed by the Suppression of Immoral
Traffic in Women and Girls Act, 1956.
'Begar' means involuntary work without payment." It is a Fundamental
Right of each and every person not to be compelled to work without due
payment. Other similar forms of forced labour are also violative of
Fundamental Rights under 23(1). The parliament by 'Virtue of Article 35
passed ''the Bonded Labour System(Abolition) Act, 1976", to deal with 'begar'
and other similar forms of forced labour, including Bonded Labour. Of course
"(2) Nothing in this Article shall prevent the state from imposing compulsory
service for public purposes, and in imposing such service the state shall not
make any discrimination on grounds only of religion, race caste or class or any
of them."
43. Tope, T.K., Constitutional Law oflndia, p. 144 (Eastern Book Company ,Lucknow, 1982 Ed.).
120
( 6)Article 25 states that
"(1) Subject to public order, morality and health and to the other
provisions of this part, all persons are equally entitled to freedom of
conscience and right freely to profess, practice and propagate religion."
The present Article guarantees the right to religion to all persons,
which includes the right ''to freedom of conscience and the right freely to
profess, practice and propagate religion." Religion includes not only ethical
code, but "rituals and observances, ceremonies and modes of worship which
are regarded as integral parts of religion; and these forms and observances
might extend even to matters of food and dress. "44
However, the right to religion is not absolute one. The Article itself
states that "subject to public order, morality and health and to the other
provisions of this part', all persons are equally entitled to freedom of religion.
Besides, the right to religion is subject to 'other provisions" of part III
of Fundamental Rights. Article 17 of the Constitution (part III) has explicitly
abolished the custom of untouchability pertaining to the Hindu Society or
Hindu Society or Hindu 'religion'. Therefore, no Hindu can lawfully defend
''untouchability" on the ground of religious freedom. Now, untouchability has
no base either in "religion' or in "custom" or in the religious freedom.
44. AI.R 1954 S.C.282 .The Commissioner, Hindu Religious Endowments Madras v. Sri
Laksmindra Thirtha Swamiar.
121
Clause (2) of Article 25 states that, "Nothing in this Article shall affect
the operation of any existing law or prevent the state from making any law.
(b) Providing for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes and sections of
Hindus."
Explanation II: In sub-clause (b) of clause (2) the reference to Hindus
shall be construed as including a reference to persons professing the Sikh, Jaina
or Buddhist religion, and the reference to Hindu religion institutions shall be
construed according! y."
Article 25(2) removes the general obstacles which otherwise would
have been so in providing for 'social welfare" and "reform" or "the throwing
open of Hindu religious institutions of a public character to all classes and
sections of Hindus."
The Constitution contemplates to throw open all the Hindu religious
institutions to all the Hindu as defined in the Explanation II.
(i) The right protected by Article 25(2)(b) is a right to enter into a
temple for purpose of worship. But it does not mean that is absolute and
unqualified. No member of the Hindu public could claim by virtue of the
Article that he should personally perform those services which the Poojari
122
alone could perform. The so called untouchable can enjoy the right to worship
in any temple "in the like manner and to the like extent as any other Hindu."45
(ii) Article 26(b) itself is a limitation on what is said under Article
(25)(b ). Article 26 states that subject to public order, morality and health every
religious denomination or any section thereof shall have the right (b) ''to
manage its own affairs in matters of religion". It is observed by the Supreme
Court in Venkatraman v. State of Madras (1958) that during certain ceremonies
and on special occasions it is only members of a certain community that have
the right to take part therein and that on those occasions all other persons
would be excluded, would be a denomination right and protected by Article
26(b).46
(iii) The provisions under 25(2) are limited to the Hindu religious
institution which are public or dedicated to the public, and the beneficiaries are
only Hindus, as explained under Explanation II.
(iv) The right protected by Article 25(2)(b) does not create any right or
claim on the part of the Schedule Castes. It is an enabling provisions to the
state to throw open the temples of Hindu religion for all Hindus. This Article,
however, neither imposes any duty on the state, nor it gives corresponding
right or any legitimate claim on the part of the Schedule Castes.
45. Yagna Purushdasji v. Muldas AI.R, 1966, S.C., 1119.
46. AI.R 1958, S.C., 255.
123
(v) Moreover, the term "the state" is ambiguous. It includes, "the
Government and Parliament of India'', "the Government and the legislature of
each of the states" and all local or other authorities within the territory of India.
If "the State" means all the authorities under the Union Governments, State
Governments and Local Governments, then it is difficult to locate the
responsibility assigned to "the State".
(vi) According to M.C.J.Kagzi, the guarantee of religious freedom does
not take away the authority of the state to legislate for maintenance of public
order, public health and public morality. He states various heads on which the
state can make legislation. They are (1) Public order, (2) morality and
health,(3) social welfare and reforms,(4) economics, financial and political
interests, and (5) respect for the Fundamental Right in general.47
(vii) It is submitted that while deciding the scope of the denominational
right reference should be made to 'equality' stated in the Preamble as well as in
Article 25(1). Undoubtedly the religious denomination or any section thereof
will have the right to "manage' the matters of religion. However, Management
does not include "discrimination' or observance of untouchability or any
"irreligious' custom which is opposed to public order, morality and health of
the people. Article 26(b) cannot conflict with any other provisions in the
47. Kagzi, M.C.J, The Constitution of India, p.578. (Metropolitan Book Co .. Pvt Ltd ,Delhi, 3rd, Ed, 1975)
124
fundamental Rights ; and even if it conflicts harmonious construction demands
that construction should be such which may avoid it.
Religious denomination is a religious sect with a distinctive name and a
common faith e.g. Advaitism, Shavism, Vaishnavism, etc. If this is the
meaning and scope of "denomination" then it seems "denominations and
sections thereof' may exhaust "Hindu" religion itself. After all what is
"Hinduism"? In a way Hinduism is a compendium of certain sects and sub-
sects, denominations and sub-denominations. All of then profess "Hinduism"
in its different forms and practices. Denomination or any section thereof is their
"inner' existence and " Hinduism" is their "outer" existence. Hence
recognising their absolute right would render Article 25 redundant.
Article 25(2) states in unqualified terms that "Nothing" in this Article
shall affect the operation of any existing law or prevent the state from making
any law; providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.
If it is observed minutely , the words such as " Hindu religion" "institutions"
"all class" and "sections of Hindus" it can be said that denominational right
may not conflict with the absolute power of the state, under 25(2)(b ). When
religious beliefs and practices conflict with matters of social reform or which
the state wants to legislate, such religious beliefs and practices must yield to
the higher requirements of social welfare and reform. "48
There is different between the provision under Article 17 and provision
under Article 25(2)(b ). It may be summarised as under:
48. The State of Bombay v. Narasu Appa Mali, A.LR., 1952, Bombay 84. 125
(1) Article 25(2) states a general provision which "extends to all class
of Hindus, not merely to "untouchables" whereas Article 17 confers a particular
right on untouchables not to be subjected to" untouchability".
(2) Article 25(2) contains "enabling" provision, empowering the state to
make laws in respect of temple entries. Article 17 "forbids" the practice of
"untouchability" as such it is prohibitive and punitive.
(3) Article 25(2) is applicable to the religious institution, including
temples. The state has been empowered to throw open all the Hindu religious
institutions for all the sections. Article 17 deals with "untouchability" which
includes enforcement of disabilities with regard to entry in the temples and
other places. "It would be anomalous to interpret "untouchability" as excluding
temple entry. For one of the immediate effects of forbidding its practice in any
form was to nullify the pre-existing enforceable right to exclude untouchables
from temples. "49
(4) It is "the state" which has been enabled to make law in respect of
temple entry under Article 25(2), whereas under Article 17 and by virtue of
Article 35 it is the Parliament alone which could pass the law.
49. Galanter Marc, Caste Disabilities and Indian Federation .(Journal of the Indian Law Institute April -June 1961, Vol. 3, No.2, p. 225).
126
(5) Article 25(2) is a "positive" provision enabling the state to make
law in respect of temple entry and to secure social welfare and reformation of
the Hindu Society. Article 17 contains a "negative" provision abolishing
untouchability.
(6) Article 25(2) confers no right or claim as such on the part of the
Scheduled Castes; whereas Article I 7 confers a right against all the persons
and institution not to be subjected to untouchability.
(7) Article 17 explicitly declares "untouchability" as an offence being a
forbidden act; whereas Article 25(2) does not declare so directly. As it states,
"Nothing in this Article "shall affect the operation of any existing law" it can
be said that owing to the punitive nature of the pre-Constitution law in this
respect, it indirectly declares that contrary to the provision of it, would
constitute an offence.
(7) Article 29(2) states that
"No citizen shall be denied admission in to any educational institution
maintained by the State or receiving aid out of state funds on grounds only of
religion, race, caste, language or any of them.
No( citizen) or person having Indian nationality, other things being
equal would be denied admission in to any educational institution maintained
by the state or receiving aid out of state funds on grounds only of religion race,
caste, language or any of them.
127
This is of course, one of the very important Article in the Constitution
which is related to the ex-untouchables who were once upon a time deprived of
this right. This clause guarantees the right of admission into any educational
institution for all the Indian nationals. Now they are equally entitled to not only
to admission but to opt any courses or subject including Sanskrit50, provided
they fulfil the minimum condition prescribed for the same, if any.
Under Article 15(4) the State is empowered to reserve a minimum
number of seat for members of the backward classes including the Scheduled
Castes, if they are in the opinion of the state socially and educationally
backward, notwithstanding anything contained under Article 29(2).
However this Article does not take away the right of an institution to
refuse admission or to expel a student on the ground of misconduct or the like
(previous training, physical fitness, vaccination, dissociation from injurious,
age, etc.) provided the discretion is not abused.51
(8) Article 32 state that, "(1) The right to move the Supreme Court by
appropriate proceeding for the enforcement of the rights conferred by this part
is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders of
writs including writs in the nature of habeas corpus, mandamus, prohibition,
quo-warranto and certiorari whichever may be appropriate for the enforcement
of any of the rights conferred by this part."
50. Previously Sanskrit was treated as sacrosanct, Dr. B.RAmbedkar was not allowed to learn Sanskrit during his childhood owing to his untouchability Caste.
51. Devsingh v. Kurukshetra University, A.I.R 1971, Punjab 340 ,345.
128
Supreme Court being the guardian of the Fundamental Right
guaranteed under part III including right under Article 1 7 and other relevant
Article any citizen or person whose rights are infringed may move the Supreme
Court directly by appropriate proceeding for the enforcement of the right
conferred by the said part. Even his right to move the Supreme Court for
enforcement of his right itself is a Fundamental Right guaranteed under
Article 32.
"Appropriate proceedings" means such proceedings "which invoke by
original petition the jurisdiction of the Supreme Court to issue according to the
nature of the case writs or orders of the types described in clause(2)" .52
What is important here is whether an ex-untouchable can approach the
Supreme Court for the enforcement of his allegedly infringed Fundamental
Right that are accrued to him by virtue of abolition of untouchability under
Article I 7? Of course the Parliament has already passed the Protection of Civil
Right Act 1955 for enforcement of such rights. Whether or not in view of
alternative legal remedy an ex-untouchable has right to move the Supreme
Court under Article 32 ? Whether the statutory right under PCRA may be an
alternative for the Fundamental Right under Article 32 ? In this respect what
the Supreme Court has to speak is important. It has stated that "the mere
existence of an adequate alternative legal remedy cannot per'se be a good and
sufficient ground for throwing out a petition under Article 32 if the existence of
a Fundamental Right and a breach actual or threatened of such right is alleged
52. Shukla, V.N. ,The Constitution of India, p.167 (Edited by Professor D.K Singh (Eastern Book Company, Lucknow, 6th Edition 1979).
129
and is prima facie established on the petition."53 Thus an ex-untouchable whose
right under Article 17 are infringed may go to the Supreme Court for the
enforcement of such rights.
(9)Article 35 provides "Notwithstanding any thing in this Constitution
(a) parliament shall have and the legislature of a state shall not have power to
make laws.
(ii) For prescribing punishment for those acts which are declared to be
offences under this part; and parliament shall, as soon as may be after the
commencement of this constitution, make laws for prescribing punishment for
the acts referred to in sub-clause(ii).
(b )Any law in force immediately before the commencement of this
Constitution in the territory of India with respect to any of the matters referred
to in sub-clause(i) of clause (a) or providing for punishment for any act referred
to in sub-clause(i) of clause (a) of that clause shall, subject to the terms thereof
and to any adaptations and modifications that may be made therein under
Article 372, continue in force until altered of repealed or amended by
Parliament."
Article 1 7 declares "untouchability" as an offence; hence the Parliament
alone is empowered to pass law for prescribing punishment for the offence
53. A.LR. 1959 S.C.725, K.K. Kochuni v. State of Madras.
130
under the said article. ,AJticle 32 (a) explicitly takes out the jurisdiction of the
legislatures of the states so far as the power of making Jaws to govern the
offence of "untouchability" is concerned.
However, from the commencement of the Constitution to right up to the
implementation of the Protection of Civil Rights Acts, 1955 ,26th January 1950
to 30th 1955, the laws passed by various states and provinces during the pre
Constitution period remained in force Article vide 35(b) and Article 372 of the
Constitutions.
So far as the rights under 25(2)(b) (Entry into religious institutions
including temples) are concerned, the Parliament as well as the legislatures of
the states are empowered to pass the laws in that respect; as the subject
"charitable and religious endowments and institutions" appears in the
concurrent list. "this is confirmed" says Marc Galanter, by the conferring of the
power on the "state" which is used in the broad sense of centra~ state and local
govemment.54 Of course, the Parliament empowered under Article 35 (a)
(ii)read with Article 17, has passed "the Untouchability (Offence)Act, 1955",
amended as "Protection of Civil Rights Act, 1955 in 1976".
(10) Article 38 under Directive Principles of state Policy, provides that
"the state shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, Social
economic and political, shall inform all the institutions of the national life".
54. Same as 49. 131
Although "shall" is written after "the state" it is qualified by "as
effectively as it may" written after 'protecting'. Thus the words "welfare" of
the "people","social-order" , "justice, social, economic and political" and
"national life" which seem to be ambiguous. Besides the courts have no
jurisdiction to enforce directive principles. 55
(11) Article 39-A states "The state shall secure that the operation of the
legal system promotes justice on the basis of equal opportunity and shall in
particular provide free legal aid, by suitable legislation or schemes or in any
other way to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities."
This principle of directive policy has been added by the Constitution
42nd Amendment Act, 1976, in order to ensure equal justice to all the citizen.
Poverty deprives equal opportunity equal status and social justice. It brings
disabilities and indignities. The pity is it is a distinct feature of untouchable
community as a whole as it is incidental to or connected with "untouchability".
Undoubtedly the provision may be helpful to all the backward communities
generally but is certainly helpful to the untouchables specially.
(12) Article 46 states "The state shall promote with special care the
educational and economic interests of the weaker sections of the people and in
particular of the Scheduled Castes and the Scheduled Tribes and shall protect
them from social injustice and all forms of exploitation.,,
55. The Constitution of India, Article 37. 132
This Article resembles with the provisions under 15( 4 ). Article 46 is a
directive whereas Article 15( 4) is an enabling provision to the state to make
any special provision for the advancement of socially and educationaUy
backward class including the Scheduled Castes. Further the present Article
resembles with Article 16( 4) also which is an enabling provision on the part of
the state to make provision for the reservations in favour of any backward class
including Scheduled Castes if in the opinion of the state they are not adequately
represented in the services.
(13) Under the chapter of Fundamental duties it is stated under
Article51-A that "it shall be the duty of every citizen of India (a) to abide by
the Constitution and respect its ideals and institutions the National Flag and the
National Anthem."
"( e) to promote harmony and the spirit of common brothelihood
amongst all the people of India transcending religious linguistic and regional or
sectional diversities to renounce practices derogatory to the dignity of women.
(h) to develop the scientific temper humanism and the spirit of inquiry and
reform."
It is said that every citizen will have "to abide" by the Constitution
which means the whole Constitution including the Fundamental Right directive
principles fundamental.duties and other provision and above all the philosophy
of the Constitution
It is a fundamental duty of every citizen to promote "harmony" and the
"spirit" of brotherhood irrespective of religious linguistic regional or sectional
diversities.
133
Further it is said that every citizen shall develop the "scientific temper"
humanism and spirit of inquiry and "reform". It seems that this clause is an
anti-thesis of ignorance, superstition , barbarism, blind faith and obscurantism.
"Fundamental rights are" as T.K.Tope observes "specifically made
enforceable, the directives shall not be enforceable by any court and as regards
the fundamental duties nothing is said. Hence it is submitted as there is no
specific prohibition for their enforceability the fundamental duties can be
enforced by the judiciary. 1156
This implies that the Constitution puts an obligation on the part of the
citizen not to believe in superstitions and wrong notions including
"untouchability".
They must develop the spirit of "humanism" and respect social reforms
based on scientific and humanitarian ground.
(14) Article 164 states that" .... in the State of Bihar, Madhya Pradesh
and Orissa, there shall be a Minister-in-charge of Welfare of the Schedule
Castes .... "
( 15) Article 325 states "There shall be one general electoral roll for
every territorial constituency for election to either House of Parliament or to .
the House or either House of the Legislature of a state and no person shall be
ineligible for inclusion in any such roll or claim to be included in any special
56. Tope T.K. ,Constitutional Law of India, p. 258, (Eastern Book Co., Lucknow, 1982). 134
electoral roll for any such constituency of grounds only of religion, race, caste,
sex or any of them."
This Article guarantees political justice to the ex-untouchables who
were deliberately deprived of this right previously. Article 330(1)(a) provides
reservation of seats in the House of people and Article 332(1) provides
reservation for the Scheduled Castes in the Legislative Assembly of every
state. Of course the quota of seats for the Scheduled Castes would be decided
according to the principle as stated under Article 330(2) in respect of the
House of People and according to Article 332(3) in respect of State Legislative
Assemblies. Accordingly the seats are reserved on the basis of the Scheduled
Caste population in the concerned state.
(16) Article 338(1) states, "There shall be a National Commission for
the Scheduled Castes and Scheduled Tribes to be appointed by the President."
338(2) "It shall be the duty of the National Commission for SC and ST
to investigate all matters relating to the safeguards provided for the Scheduled
Castes and Scheduled Tribes under this Constitution and report to the
President upon the working of those safeguards at such intervals as the
President may direct, and the President shall cause all such reports to be laid
before each House of Parliament."
The National Commission for the S.C. and S.T. 1s to "(l)
investigate all matters relating to the safeguards provided for the
Scheduled Castes and Scheduled Tribes under the Constitution, and (2) to
135
report to the President upon the working of those safeguards". The President
shall cause all such reports to be laid before each House of Parliament.
(17) Article 341 states "(1) The President may with respect to any state
or Union Territory and where it is a state, after consultation with the Governor
thereof by public notification, specify the castes, races of tribes or parts of or
groups within castes, races or tribes which shall for the purpose of this
Constitution be deemed to be Scheduled Castes in relation to that State or
Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under Clause (1) any caste,
race or tribes or part of or group within any caste, race or tribes, but save as
aforesaid a notification issued under the said clause shall not be varied by any
subsequent notification."
According to Article 366(24) "Scheduled Castes" means such castes,
races or tribes or parts of or groups within such castes, races or tribes as are
deemed under Article 341 to be Scheduled Castes for the purposes of this
Constitution.
Although no criteria is laid down specifically under 341 for declaring a
particular community as Scheduled Castes, the Constitution (S.C.) Order 1950,
Clause 3 lays down the condition that any member claiming to be Scheduled
Caste must either belong to Hindu or Sikh or Buddhist religion. 57
Of all the Article discussed above, Article 17 is pivotal one, as it abolishes
all the disabilities incidental to or connected with untouchability. All those
57. For Details see Annexure. 136
Article, other than Article 17, touch some aspect of untouchability and remove
a part of it, but in the absence of Article 17 they would have been of hardly
any use to the untouchables.
II. LEGISLATIVE MEASURES ADOPTED BY VARIOUS STATES
FOR REMOVAL OF UNTOUCHABILITY DURING 1950 TO 1955
1. The Constituent Assembly convened in 1946 was to frame a new
Constitution for independent India. Almost all the people were preparing
themselves to welcome the dawn of a new social order based on a new political
order which was to be incorporated in the Constitution. The anti-untouchability
movement led by Dr. B.R. Ambedkar and Mahatma Gandhi also created a
favourable atmosphere for the removal of untouchability. It was this situation
which impelled several States and provinces to pass the laws to abolish
untouchability in their respective States and implement them.
The Constitution which came into force in 1950 empowered the
Parliament alone to make a uniform law prescribing punishment for the
offences of untouchability, but the Parliament failed to do so till 1955.
Therefore, all those law as passed by various States for the removal of
untouchability in the pre-Constitution era were in force in their respective
states till 30th may 1955 by virtue of Article 372 of the Constitution.
The following table shows which law was prevailing in which State
during 1950 to 1955.
137
TABLE
Sr. No. State/Union Temple Entry Anti-Disabilities Territories Act Acts
1 Assam Nil Nil
The Bihar Harijan
2 Bihar Removal of Civil
-Disabilities Act,
1946. The Bombay
The Bombay Harijan Removal 3 Bombay Harijan Temple of Civil
Entry Act, 194 7. Disabilities Act, 1946
The Central Pr. & Berar
4 Madhya Pradesh S.C.(Removal of Civil Disabilities
Act, 1947) The Madras
5 Madras Removal of Civil - Disabilities Act,
1938.
The Orissa The Orissa of
6 Orissa Temple entry Act, Removal of Civil Disabilities Act,
1948. 1946
The East Punjab The East Punjab
7 Punjab Removal of Civil Removal of Civil Disabilities Act, Disabilities Act,
1948 1948. The United Provinces
8 Uttar Pradesh - Removal of Civil Disabilities Act,
1947. The West Bengal
Hindu Social 9 West Bengal - Disabilities
Removal Act, 1948.
The Hyderabad The Hyderabad
Harijan Temple Harijan Removal
10 Hyderabad of Civil Entry Regulation
Disabilities Act, 1358 F.
1949 138
The Removable
11 Madhya Pradesh - of Civil Disabilities Act,
1943 The Mysore
Mysore Temple Entry -12 Authorisation
Act, 1948.
13 Pepsu - -The Saurashtra
Harijan Removal 14 Rajasthan - of Civil
Disabilities Act, 1948.
15 Saurashtra - -The Travancore Temple Entry
16 Travancore Removal of Civil -Disabilities Act,
1950. The Coorg
Removal of Civil 17 Ajmer - Disabilities Act,
1949
18 Bhopal - -
19 Bilaspur - -
The Coorg
20 Coorg Temple Entry -Autorisation Act,
1949.
21 Delhi - -
22 Himachal Pradesh - -
23 Kachh - -
24 Manipur - -
25 Tripura - -
26 Vindhya Pradesh - -
139
Thus out of 26 States/Union Territories the temple entry Acts were in
operation only in 7 States and the Anti-Disabilities Acts were in operation in 14
states only. No Anti-Untouchability law was in force in 12 States/Union
Territories.
(2) Under almost all the State Acts every offence under them was
punishable with imprisonment which would extend to six months or with fine
which would extend to five hundred rupees or with both. For every subsequent
conviction, the convict was punishable with both imprisonment and fine.
Under some Acts every offence was cognisable and it was
compoundable with the permission of the Court. 58 There was no provision of
"Presumption" by the courts in favour of the complainant in any Act. The
offences committed by the individuals only were governed by those Acts and
not the offences committed by any company.
(3) There were certain challenges to those Acts alleging that they were
ultra-vires of the Constitutional Provisions. The first ground of the challenge
was that, the Parliament alone was empowered to make law for providing
punishment for the offences under Article 17 and under Article 35 of the
Constitution and not the State Legislatures. Hence the laws passed by the State
Legislatures would be ultra vires of the Constitution. In this respect the Indore
Bench of the High Court laid down an important principle in State v. Kishan
58. Hyderabad Harijan Temple Entry Regulation 1358F Section 6, Hyderabad Harijan (Removal of Social Disabilities) Regulations 1358 F, Section 9., Coorg Scheduled Castes (Removal of Civil and Social Disabilities) Act. 1949, Section 9.
140
(1955), that "the power of State Legislature to make law as prescribing
punishment for those acts which were declared to be offences under Article I 7
are withdrawn by Article 35 of the Constitution and are vested in the Central
Parliament. The provision has a prospective application and laws in force in the
state before the commencement of the Constitution, are specifically saved and
are to continue until altered, repealed or modified or amended by the
Parliament. "59
When there was a challenge to the U.P. Removal of Social Disabilities
Act, 1947, on the ground of religious freedom under Article 25(1) and Article
26 in Shri Swami Hariharranand Saraswati alias Karpatriji and 25 others
v. the Jailer llC District Jail (Banaras) (J 954). ro' it was held that according to
Article 25(2) " the law authorising temple entry could appropriately come
within in the definition of 'existing law' contained in Article 366(10) as such
the law authorising temple entry was protected in as much as this law only
provided for the removal of those distinctions which caste Hindus enforced on
the Harijans in respect of, among other matters, entry of Harijans in temple on
the same footing as caste Hindus."
It was held in Venkatraman Devaru v. State of Mysore (1958) 61
that the Madras Temple Entry Authorisation Act(l947) was not ultra vires of
the Constitution as the validity of the impugned Act was on Article 25(b) of the
Constitution .
59. State v. Kishan, Al.R 1955, MB. 207.
60. 1954 AL.J. 355-361.Sharma, G.S Legislation and Cases on Untouchability and Scheduled Castes in India p. 98 (Allied Publishers, Bombay, 1975.).
61. Venkatrama Devaru v. State of Mysore, A.LR 1958, S.C. 255.
141
Ill THE PROTECTION OF CIVIL RIGHTS ACT, 1955
The Parliament of India empowered under Article 35(a)(ii) to pass a
law prescribing punishment for the 'offence' of "untouchability" under Article
17 of the Constitution passed-"The Protection of Civil Rights Act, 1955."
1. Preamble: The Preamble of any Act is the key to the interpretation
of that statute.
It has been observed by the Nagpur High Court (1954) that, "the
Preamble is conclusive as to the facts which operated on the mind of the
legislature. It indicates the occasion and the reason for the enactment. But if
the enacting part is clear and unequivocal, the Preamble can neither restrict nor
enlarge the scope of the enacting provision."62
According to Sarjoo Prasad C.J. (1955) of the Assam High Court "the
Preamble to Act discloses the primary intention of the legislature, but it cannot
override the provisions of the Act, if in fact these provisions are in conflict with
the preamble itself and lead to some result not warranted by the Preamble. "63
The Preamble of the present Act should be viewed in this context.
Previously in 1955 it was designed as "An Act to prescribe punishment for the
practice of 'untouchability', for the enforcement of any disability arising there
from and for matters connected herewith. Be it enacted by Parliament in the
62. Mohamadali Fakrauddin v. Gopalprasad , A.LR 2954 Nagpur 209.
63. HP. Barna v. State of Assam, AI.R 1955 Assam 249.
142
sixth year of the Republic of India as follows. "64 This has been amended
subsequently in the year 1976 by Act, 106of1976.
Now it stands as follows:
"An Act to prescribe punishment for the preaching and practice of
untouchability, for the enforcement of any disability arising there from and for
matters connected therewith.
Be it enacted by Parliament in the sixth year of the Republic oflndia as
follows:"65
Thus the Preamble of this Act reveals the object of the Act which
prescribes punishment for the "offence" of untouchability, which may
presumably be in the form of (a) preaching of untouchability, (b) practice of
untouchability, and (c) the enforcement of any disability arising therefrom.
1. Title ,extent and commencement
The title of the Act is an important aid in the interpretation of the
statute , in as much as it reveals the intent and design of the legislature in
passing the Act . "It is only in cases where the meaning of the legislation is
not clear recourse may be had to the title of statue or to the Preamble. "66
In course of ambiguity or an expression capable of more than one
meaning, it is permissible to the court to look at the title of an Act for
64. Act No. 22of1955, It was named as" The lllltouchability (Offences) Act 1955".
65. Act No 106of1979,13th September 1976.
66. Mangilal Karwa v. State ofM.P.A.I.R 1955, Bomby- 363.
143
ascertaining the object of the Act or the mischief which the legislature was out
to remedy.67
So far as the Act in question is concerned the title is of great importance
.Previously , it was" Untouchability (offences) Act 1955" but later on it has
been amended as " The protection of Civil Rights Act 1955 by the Act of 106
ofl976.
During discussion on the untouchability (offences) Bill in Rajya
Sabha on16th September 1954 Dr B.R Ambedkar expressed that, "I think that
is a very important matter , and I think that a good law ought to have a good
and succinct name . What is the name of this Bill ? A Bill to provide
punishment for the practice of untouchability or the enforcement of any
disability arising therefrom .I personally think that is a very clumsy name and
very mouthful. What really should be the name of the Bill may be a matter of
disability but I personally think that it ought to have been called, 'The Civil
Rights (Untouchables) Protection Act'. After all, what you are doing is nothing
more than protecting their Civil Rights. The emphasis ought to have been
therefore on civil rights I venture to tell my friend in charge of the Bill that if
he had referred to the case of Negroes in the United States or to the civil war,
he would have found that the Bill that he is now proposing to be passed by
Parliament has had its predecessor in the United States and that Bill, if he will
refer to it he will find a simply styled Civil Rights Protection Bill. Even the
word 'negro' is not mentioned in it.
I don't know why he should keep on repeating untouchability and
untouchables all the time. In the body of the Bill he is often speaking of the
67. Commisioner of Labour v. A.C.C. Ltd., A.I.~ 1955, Bombay 363.
144
Scheduled Castes .The Constitution speaks of the Scheduled Castes and I don't
know why he should feel shy of using the word " scheduled Castes" on the
title of the Bill itself. Personally for myself , I would be quite happy with the
name "untouchables civil Rights protection Bill or Scheduled Castes Civil
Rights Protection Bill"68.However ,this proposal did not come into reality and
name of the Act remained as it was in the Bill.
When the Government proposed to amend the existing Act and
introduced the Bill in 197269 to that effect ,the parliament referred the Bill to
the Joint Committee of the Parliament headed by Shri R.D Bhandare and later
on with effect from 2?1h February 1973 Shri S.M.Siddaya . The said joint
committee was of the opinion that "By reason of the abolition of untouchability
certain rights are conferred on those who are subjected to the disability of
untouchability and therefore the law should mainly concern itself to protect
those rights .Hence more emphasis should be laid in order to protect those
rights rather than punishing the offenders who preach or practice
untouchability in any form. Therefore the committee feels that the short title of
the principal Act should be changed to the Protection of Civil Rights Act"70
.Parliament finally approved the said title.
The present title of the ·Act seems to be more meaningful and
appropriate as it indicates the positive pledge of the parliament to protect the
68. Rajya Sabha Debates Vol.VII, Co 16-29, on l61h September 1954, p. 243 l.
69.Bill No, 31 of 1972,introduced in Loksabha by Narul Hasan.
70. Report of the Joint committee on the untouchability (offences) Amendment and Miscellaneous Provision Bill , 1972, Submitted by Shri. S. Msiddayya , Chairman of the
Committee on Feb. 22 1974 to the Parliament.
145
Civil Rights of the ex-untouchables which they accrued by reason of the
abolition ofuntouchability .Of course the intention of the Act is not to give any
more or better rights to the untouchables than caste Hindus. It is intended to
put untouchables at par with other Hindus. 71
(2) The Act extends to the whole of India .This Act is enforceable in all
the courts of law throughout India.
2. In this Act, unless the context otherwise requires (a) " Civil Rights
means any right accruing to a person by reason of the abolition of
untouchability by Article 17 of the Constitution. This clause has been inserted
in the original Act by Act ofl 06 of 1976 . It became necessary to define the
term Civil Rights as it appears in the title of the Act with effect from1976.
Here Civil Rights have somewhat restricted meaning as Civil Rights
means any right accruing to a person by reason of the abolition of
untouchability. Such rights are mentioned in the Act itself in various sections
,viz,3,4,5,6,7,7A. It is expected that those rights may help in raising the status
of the ex-untouchables to that of others. Those Civil Rights are not privileges
but just rights aimed at social equality.
It seems that such rights do not exhaust with sections 3,4,5,6,7,7A ,as
the term includes "any right" accruing to a person by reason of the abolition of
untouchability. As untouchability is taken in its historical perspective , such
rights would be available to those persons who were regarded as untouchables
in the course of history. The Act chanalizes the restricted flow of all the Civil
Rights in favour of the ex-untouchables.
71. Karmakar, RG.The Protection of Civil Rights Act 1955, p. 4 (Law Book Sellers, Shaniwar Peth, Pune 1978.
146
(aa) "Hotel" includes a "refreshment room, a boarding house, a
lodging house, a coffee house and a cafe". These terms would cover a
canteen as also hotel in the sense in which a hotel is commonly
understood in India as including a wayside hut where tea, coffee etc.,
are sold72• It seems that the place or location of the hotel is not
important here but the activity of the hotel is important in ascertaining
such place.
(b) "place" includes a house, building and other structure and
premises and also includes a tent, vehicle and vessel .
( c) "place of public entertainment" includes any place to which
the public are admitted and in which an entertainment is provided or
held".
Explanation : "Entertainment includes any exhibition, performance,
games, sport and any other form of amusement". The definition of
place of public entertainment is not exhaustive. It includes any place to
which the public are admitted and in which an entertainment is
provided or held. Entertainment is also an inclusive term which
includes any exhibition, performance, game, sport and other forms of
amusement like theatres, shows, funfairs, music houses or any such
forms of amusement.
( d) "place of public worship means a place, by whatever
name known which is used as a place of public religious worship
of which is dedicated generally to or is used generally by
persons professing any religion or belonging to any religious
72. Ibid 147
denomination or any section thereof for the performance of
any religious service, or for offering prayers there in and
includes:
(i) all lands and subsidiary shrines appurtenant or
attached to any place.
(ii) A privately owned place of worship which is in
fact allowed by the owner thereof to be used as a
place or public worship, and
(iii) Such land or subsidiary shrine appurtenant to such
privately owned place of worship as is allowed by
the owner thereof to be used as a place of public
religious worship.
(dd "prescribed" means prescribed by rules made under this Act"
(db) Scheduled Castes has the meaning assigned to it in clause (24) of
Article 366 of the Constitution.
(e) shop means any premises where goods are sold either
wholesale or by retail or both wholesale and by retail and
includes (i) any place from where goods are sold by hawker or
vendor or from a mobile van or cart, (ii) a laundry and a hair
cutting saloon, (iii) any other place where services are rendered
to customers.
Thus the Act itself provides the meaning of certain words or terms that are used
in the Act . "Unless the context otherwise requires" the meaning provided
under this section would be construed accordingly throughout the Act.
However, when the Act itself provides a dictionary for the words used the
148
court must look into that dictionary first for the interpretation of the words used
in the statute" 73
Punishment for Enforcing Religious Disabilities
3. Whoever on the ground of 'untouchability' prevents any person.
(a) from entering any place of public worship which is open to other
persons professing the same religion, or any section thereof as
such person, or
(b) from worshipping or offering prayers of performing any religious
services in any place of public worship or bathing in, or using the
waters of, any sacred tank, well, spring or water-course river or
lake or bathing at any ghat of such tank, water-course, river or
lake in the same manner and to the same extent as is permissible
other persons professing the same religion or any section thereof,
as such person, shall be punishable with imprisonment for a term
of not less than one month and not more than six months and also
with fine which shall be not less than one hundred rupees and not
more than five hundred rupees.
Explanation: "For the purposes of this section and section 4 persons
professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu
73. Hari Prasad v. Divakar, A.LR 1957 Supreme Court, 121.
149
religion in any of its forms or developments including Virashaivas, Lingayats,
Adivasis, followers of Brhamo, Prarthana, Arya samaj and the Swaminarayan
Sampradaya shall be deemed to be Hindus."
The object of this section is to abolish the religious disabilities which
were imposed by the Caste Hindus on the so -called untouchables. The offence
would be complete as soon as any person "prevents" another from enjoying his
religious right "on the ground of untouchability" .In state v. Kanu Dharma
(1955) 74 the Bombay High Court observed that even loud shouting so as to
deter any ex-untouchable from entering a temple would amount to preventions.
It is the general rule that an act constituting an offence must be done
with guilty mind or evil intention or 'Mens rea'. "Means rea means an intention
to do the forbidden act." 75•
"On the ground of untouchability" phrase indicates the mental element
or criminal intention of an offender. Of course "untouchability" has originated
in the criminal intention of hatred, contempt, vengeance and suppression of a
section of people, as stated in the preceding chapter. Therefore, the
requirement of 'mens rea' under the offence of untouchability is quite
reasonable and it is very much implied in the practice of untouchability itself.
However, under this Act it is not necessary for the complainant to
prove that the defendant had discriminated him 'on the ground of
untouchability' only and not on 'any other ground.' By virtue of Section 12 of
this Act ,the court shall presume unless the contrary is proved, that the act
74. State v. Kanu Dharma, A.LR 1955, Bombay 390.
75. Williams Glanville L. , The Mental Element in Crime, p. I 0.
150
constituting and offence under this act was committed 'on the lgio,und of
I~' untouchability if is committed in respect of a S.C. In other cases in ~h~ich the
ex-untouchables other than Scheduled Castes are involved they hav~lf prove
the "act" or "offence" of untouchability was committed on the J'1nd of
"untouchability" and nothing more because untouchability itself is inlSive of
mens rea.
Under this section the ex-untouchability are empowered to enter any
'place of public worship or offer prayers or perform any religiousJ[vice
therein and they are authorised to take bath or use fhe sacred waterfifi any
tank, spring or water course, river or lake. Such pla~e of worship mJ~~.l. be a
t" public place or dedicated to the public or if as privately owned place rliifist be \,·~
allowed to the public for worship. If such place is not 'public' th~~ any i .,
Prevention to enter or worship therein would, not co11stitute an off enc~~; It is
categorically observed in a case by the Cuttack High Court that "where!the
function was a private one and it was not a place of public worship ad~ the \<:, '
prevention of the complainant was not on the basis of his being a untoucl\.~ble
as people of caste were allowed to participate in the furi,ction, the case di~ot come under Section 3."76
It is decided that "thadappall is a kitchen of the temple where Nived~.,an
is prepared and where admittedly no worship takes place."77 Hence refus~f+ enter such place which is not used for worship would not constitute an offeiid~
under this section.
76. A.LR 1965 Cuttack 455.
77. Parameshwaran Moorthy v. Vasudev Kurup, l.L.R. 1960.
151
However this right is subject to the same manner and to the same extent
as is permissible to other persons professing the same religion or any section
thereof. It is observed in a case by the Madhya Pradesh High Court that the
object of Section 3 is not to create any new rights in favour of untouchables but
it is intended only to put them at par with other caste Hindus." 78 The Kerala
High Court also observed that All that section 3 means is that no person should
be refused admittance to place of public worship where other persons
professing the same religion or belonging to the same denomination are
admitted on the ground that such person is an untouchable . The section cannot
be deemed to have conferred an unfettered right to every Hindu to perform
rituals which according to the principles and tenets of the religion must be
conducted only by priests or to enter such places where such ceremonies are
being performed." 79
It is clear from the main part of section 3 that if a person is prevented
from entering any place of public worship on the ground that he is untouchable
the act of prevention is penal on the part of the person who does it only if the
place be one of public worship and either open to other persons professing the
same religious denomination as that person .It therefore follows that the section
means to preserve the distinction between the places of public worship not only
belonging to different religions but even between such places as belonging to
different denominations or sections included in one religion. "80
78. State v. Puranchand, A.LR I 958 M.P.352.
79. LL.R 1960, Kerala 73.
80. A.LR, I 958, Madhya Pradesh 352.
152
In comm1ss1oner Hindu Religious Endowments Board v. L.T
.Swamiyar (1954) the Supreme Court held that there could be no such thing as
an unregulated and unrestricted right of entry in a public temple or other
religious institution for persons who are not connected with spiritual functions
thereof. It is a traditional custom universally observed not to allow access to
any outsider to the particularly sacred parts of the temple as for example the
place where the deity is located. There are also fixed hours of worship and rest
for the idol when no disturbance by any member of public is allowed" 81
The Parliament by Act 106 of 2976 has deleted the words, "belonging
to the same religious denomination" from this Section. However, the word
"sections thereof' are still retained. Does it mean that the section intends to do
away with denominational difference and retain sectional difference?
According to Shri R.G. Karmakar , J., the rules laid down by Kerala and
Madhya Pradesh High Courts, "are still good law." 83. According to
K.D.Gangrade, "the amended Act(PCRA) continues to put rights of
untouchables on parity only with the right of "others of the same religion" and
does not clarify the meaning of the explanation. From this one could very well
conclude that the legal position under the new Ac~ will probably be as held in
the above case of State v. Pumanchand."84
80. A.LR 1954, Supreme Court p. 282, Commissioner of Hindu Religious Endowments Bombay v. V.L.T Swamiar.
82 A.LR, 1958 Supreme Court, 255.
83. Karmakar, R.G. The Protection of Civil Rights Act, p. 28 (Law Book Sellers, Shaniwar Peth , Pune , 1978)
84. Gangrade ,K.D, Social Legislation , in India , p. 244 ( Concept Publishing Co., 153
Of course, the Joint-Committee constituted by the Parliament to submit
its report after due deliberation on the Bill, stated in its report that, "subject to
the provisions of Article 26 of the Constitution, places of public worship of nay
particular religion should be open to all persons belonging to the same
religion." Prevention of Temple Entry on the ground of untouchability of a
person should be punishable even if the person concerned does not belong to
the same denomination as the person prevented.85
While speaking on the untouchability Bill in the Lok Sabha, the then
Home Minister Shri G.B.Pant had categorically said that, " this Bill does not
apply to Hindus alone. It applies to all- we have, however, enlarged the scope
of this Act. It will apply not only to Scheduled Castes, but probably to
Christians in the South who are not allowed to enter Churches by those who
consider themselves belonging to higher classes. There are certain Muslims
who are treated in the same manner by the followers of Islam. They will have
the benefit of the Provision. "86
Punishment for Enforcing Social Disabilities
5. "Whoever on the ground of "untouchability" enforces against any
person any disability with regard to
85. Report of Joint Committee (1972).
86. Lok Sabha Debates, April 27, 1955 pp. 6545-6672.
154
(i) Access to any shop, public restaurant, hotel or place of public
entertainment; or
(ii) The use of any utensils, and other articles kept in any public
restaurant, hotel, dharamshala, sarai or musafir khana for the use of
the general public or of any section thereof; or
(iii) The practice of any profession or the arraymg on of any
occupation, trade or business or employment in any job; or
(iv) The use of, or access to, any river, stream, spring, well, tank,
cistern, water tap or other watering place, or any bathing ghat, burial
or cremation ground, any sanitary convenience, any road. or passage, or
any other place of public resort which other members of the public, or
any section thereof have a right to use or have access to; or
(v) The use of, or access to, any place used for a charitable or a public
purpose maintained wholly or partly out of state funds or dedicated to
the use of the general public; or any section thereof; or
(vi) The enjoyment of any benefit under a charitable Trust created for
the benefit of the general public or any section thereof; or
(vii) The use of; or access to, any public conveyance; or
(viii)The construction, acquisition or occupation of any residential
premises in any locality, whatsoever; or
(ix) The use of any dharmashala, sarai or musafir khana which is
open to the general public or to any section thereof; or
(x) The observance of any social or religious custom, usage or
ceremony or taking part in, or taking out, any religious, social or
cultural procession or
155
(xi) The use of jewellery and finery
shall be punishable with imprisonment for a term of not less than one month
and not more than six months and also with fine which shall be not less than
one hundred rupees and not more than five hundred rupees.'
Explanation; For the purposes of this section, "enforcement of any
disability" includes any discrimination on the ground of "untouchability."
Explanation; For the purpose of this section "persons professing the
Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in
any of its forms of developments including Virashaivas, Lingayats, Adivasis,
followers of Brahman Prarthana, Arya Samaj and the Swaminarayan
Sampradaya shall be deemed to be Hindus."
The object of this section is to remove untouchability in certain areas as
stated under this section. It seems that this section is arranged in such a way so
as to give effect to Articles 17 and 15(2) as well as Articles 16(2),
19( 1 )(b ),( e )(g),21,25( 1) and 26( c) of the Constitution. 87 Thus it intends to root
out untouchability from social sphere.
The object of this section is to remove untouchability in certain areas
as stated under this section.
87. Ibid.
88. Kannakar, R.G., The Protection of Civil Rights Act, 1955 , p.34, (1978).
89. Benudhar v. State, J.L.R 1962 (Cuttack 256).
156
Punishment for Refusing to Admit Persons to Hospitals etc.
5. "Whoever on the ground of 'untouchability';
(a) refuses admission to any person to any hospital, dispensary,
educational institution or any hostel, if such hospital, dispensary,
education institution or hostel is established or maintained for the
benefit of the general public or any section thereof; or
(b) does any act which discriminates against any such person after
admission to any to any of the aforesaid institutions.
shall be punishable with imprisonment for a term of not less than one month
and not more than six months and also with fine which shall be not less than
one hundred rupees and not more than five hundred rupees."
Object of this section is to remove untouchability in the hospitals and
educational institutions. It seems that this section is based on Articles 17, 15( 1 ),
29(2)90 and 46 of the Constitution.
Under section 5 of the Act even if the discrimination is not solely or
only on the ground of untouchability and if untouchability is only one of the
grounds of discrimination the person practising such discrimination would be
guilty of the offence. So if one of the reasons for the segregation of the Harijan
students is on the ground of untouchability the offence is made out. "91
90 Article 21 : Personal Liberty; Article 25( I) : Freedom of Religion.
91. Ramachandran Pillai v. State ofKerala, Kerala, L.T 1015 ,(1964).
157
Punishment for Refusing to Sell Goods or Render Services
6. "Whoever on the ground of 'untouchability' refuses to sell any
goods or refuses to render any service to any person at the same time and place
and on the same terms and conditions at or on which such goods are sold or
services are rendered to other persons in the ordinary course of business shall
be punishable with imprisonment for a term of riot less than one month and not
more than six months and also with fine which shall be not less than one
hundred rupees and not more than five hundred rupees."
Refusing to sell goods to untouchables or refusing to render any
service would be an offence. Further, refusing to sell includes refusing to sell
the goods or render the services at the same time and place and on the same
terms and conditions at on which such goods are sold or services are rendered
to other persons in the "ordinary course of business." Any delay,
discrimination and variation in the terms and conditions while selling goods on
the ground of untouchability would be an offence, the convict would be liable
to same punishment which is prescribed for the preceding sections.
Punishment for other Offences Arising out of "Untouchability"
7(1) "Whoever:
158
(a) Prevents any person from exercising any right accruing to him by
reason of the abolition of 'untouchability' under Article 17 of the
Constitution; or
(b) Molests, injures, annoys, obstructs or causes or attempts to cause
obstruction to any person in the exercise of any such right or
molests, injures, annoys or boycotts any person by reason of his
having exercised any such right; or
(c) by words either, spoken or written, or by signs or by visible·
representations or otherwise incites or encourages any person or
class of persons or the public generally to practice 'untouchability'
in any form whatsoever; or
( d) insults or attempts to insult, on the ground of 'untouchability' a
member of a Scheduled Caste.
shall be punishable with imprisonment for a term of not less than one month
and not more than six months and also with fine which shall be not less than
one hundred rupees and not more than five hundred rupees."
Explanation I : A person shall be deemed to boycott another person who :
(a) refuses to let such other person or refuses to permit such other person
to use or occupy any house or land or refuses to deal with, work for
hire, or do business with, such other person or to render to him or
159
receive from him any customary service or refuses to do any of the said
things of the terms on which such things would be commonly done in
the ordinary course of business ; or
(b) abstains from such social, professional, or business relations as he
would ordinarily maintain with such other person.
Explanation II: For the purpose of clause (c) a person shall be deemed to
incite or encourage the practice of untouchability :
(i) if he directly or in directly preaches untouchability or its practice
in any form or
(ii) if he justified, whether on historical, philosophical or religious
grounds or on the ground of any tradition of the caste system or
on any other ground, the practice ofuntouchability in any form.
(l)(A) Whoever commits any offence against the person or property of
any individual as a reprisal or revenge for his having exercised any right
accruing to him by reason of the abolition of untouchability under Article 17 of
the constitution shall where the offence is punishable with imprisonment for a
term exceeding two years be punishable with imprisonment for a term which
shall not be less than two years and also with fine.
(2) Whoever :
(i) denies to any person belonging to his community or any section
thereof any right or privilege to which such person would be
entitled as a member of such community or section.
(ii) Or takes any part in the ex-communication of such person on the
ground that such person has refused to practice untouchability or
160
that such person has done any act in furtherance of the objects
of this Act
Shall be punishable with imprisonment for a term of not less than one
month and not more than six months and also with fine which shall be not less
than one hundred rupees and not more than five hundred rupees.
The object of this section is to give full effect to Article 17 of the
Constitution. According to R.G.Karmarkar, "the legislature has taken note of
the tensions such conferment of rights was bound to generate in a community
ridden with centuries old orthodoxy and prejudice, with the untouchables
attempting to exercise the newly accrued rights and with well meaning persons
helping them exercise th~ same. The section is aimed at protecting effectively
the rights to Harijans as well as the persons exercising them or helping their
exercise from diverse forms of opposition that they may be subjected to from
insults to individual Harijans and physical violence towards them to reprisals
against them out of vengeful attitudes. "92
Whoever molests, injures, annoys, obstructs or causes to
obstruct or attempts to cause obstruction while exercising any Civil Right
would be an offence. Even 'attempt' to cause obstruction is also an offence. In
other words, the act of obstruction need not be complete for bringing the guilt.
"Molests" means any interference or indecent behaviour. "Injure" means any
harm or damage or any harm to his feeling and self-pride. "Annoy" means
trouble which irritates such person for his no fault. "Obstruct" means prevent.93
92. Karmakar RG. ,The Protection of Civil Rights Act 1955, p. 51-52,(1978).
93. Dictionary meaning.
161
In words of Dr. B.R.Ambedkar " in legal terms, social boycott is
nothing else than a conspiracy, which is an offence recognised by the Indian
Penal Code. If two people engage themselves in doing wrong to a third person,
well, that is conspiracy. The social boycott is brought about by the concurrence
of the majority of the people and is also a conspiracy and could be recognized
as an offence. "94
Clause(d): This has been added by Act, 106of1976. "Insult" means an
intentional use of abusive filthy language which is capable of provoking breach
of peace on the part of the complainant.95
In Laxman Jayaram Shat v. State of Maharastra, (J 980) the Bombay
High Court observed that, "Evey insult or attempt to insult a member of
Scheduled Caste, would not fall within the mischief of the said clause( d) of
Section 7(1) of the Act unless such insult or attempt to insult is on the ground
of 'untouchability' . There must be specific intention of person to insult. He
must have mens rea to that effect. Such insult must be referable to practising
and preaching ofuntouchability."96
The word 'Mahardya' prima facie amounts to an insult. It is indicative
of offensive disrespect and indignity. It is normally used to hurt the feelings
and self -respect of the person whom it is addressed, such a person is treated
with insolence and contempt.97
94. Rajya Sabha Debates, Vol VII No. 16-29, Speech delivered on 16th September 1954.
95. I.P.C. Section 504.
96. The Bombay Cases Reporter, August 1980, Vol 2, Part Vlll.
97. Criminal Law Journal 872, May 1982.
162
Clause(2): The object of this clause is to protect the persons belonging
to touchables castes in case of their ex-communication, owing to their refusal
to practice untouchability in any form.
Whoever denies any right or privilege to which a person is entitled as a
member of his community.
Or takes any part in the 'ex-communication' of such person because of
his refusal to practice 'untouchability' or such person has done any act in
furtherance of the objects of the Act, commits an offence under Clause (2)(ii).
The ex-communication means, "to cut from communion or membership,
especially from the sacraments an fellowship of the church by ecclesiastical
sentence. "98
Unlawful Compulsory Labour when to be Deemed to be a Practice of
Untouchability
7A: (1) 11 Whoever compels any person, on the ground of
'untouchability' to do any scavenging or sweeping or to remove any carcass or
to flay any animal or to remove the umbilical cord or to do any other job of a
similar nature shall be deemed to have enforced a disability arising out of
'untouchability'.
(2) Whoever is deemed under sub-section (1) to have enforced
a disability arising out of 'untouchability' shall be punishable with
imprisonment for a term which shall not be less than three months and not
98. Random House Dictionary. 163
more than six months and also with fine which shall not be less than one
hundred rupees and not more than five hundred rupees.
Explanation: For the purpose of this section, 'compulsion' includes a
threat of social or economic boycott."
The so called untouchables were subjected to compulsory labour of
various types in the past as a form and practice of "untouchability". The
labour or services which they were asked to do or perform were of filthy
nature, as they were to lower down the social status of untouchables in the
eyes of the others, the removal of carcasses, scavenging, sweeping etc. Such
services or occupations caused to consolidate the institution of untouchability.
Even After the abolition of untouchability also such services were being
imposed on the ex-untouchables in some parts of the country. Therefore, the
Parliament took the note of this custom and provided punishment for the same
by the Act 106 of 1976. Obviously the object of this section is to free the
untouchables from the compulsion of such occupations on their part. This
section is, however, based on Article 17 and Article 23(1) of the Constitution
of India. 99
Cancellation or Suspension of Licence in Certain Cases
8. When a person who is convicted of an offence under Section 6 holds
any licence under any law for the time being in force in respect of any
99. Article 23 (I) : Prohibition of. .... forced labour. 164
profession. trade, selling or employment in relation to which the offence is
committed, the court trying the offence may, without prejudice to any other
penalty to which such person may be liable under that section, direct that the
licence shall stand cancelled or be suspended for such period as the court may
deem fit, and every order of the court so cancelling or suspending a licence
shall have effect as if had been passed by the authority competent to cancel or
suspend the licence under any such law.
Explanation: In this section "licence" includes a permit or a
permission.
Under this section the court is empowered to direct the convict under
Section 6, that the licence which he holds stands cancelled or suspended for a
certain specified time. Thus · the court has got the discretion whether in
addition to the punishment awarded under Section 6 of this Act, to cancel the
licence or permit or not to cancel the same.
Resumption or Suspension of Grants by Government
9. "Where the Manager of Trustee of a place of Public worship or any
educational institution or hostel which is in receipt of a grant or money from
the government is convicted of an offence under the Act and such conviction is
not reversed or quashed in any appeal or revision, the Government may, if in
its opinion the circumstances of the case warrant such a course direct the
suspension or resumption of the whole or any part of such grant."
165
Abetment of Offence
10. " Whoever abets any offence under this Act shall be punishable
with the punishment provided for the offence.
Explanation : A public servant who wilfully neglects the investigation
of any offence punishable under this Act shall be deemed to have abetted an
offence punishable under this Act."
This section provides punishment for abetment of any offence under
this Act. Explanation to this section has been added by Act, I 06of1976.
The word 'to abet' means "encourage, support or countenance by aid or
approval, usually in wrong doing." 100 Thus one who encourages, supports or
approves any wrong contemplated under this Act commits an abetment
punishable accordingly.
It is necessary to bear in mind that "notwithstanding anything contained
in the Code of Criminal Procedure, 1973 , when any public servant is alleged to
have committed the offence of abetment of an offence punishable under this
Act, while acting or purporting to act in the discharge of his official duty, no
court shall take cognizance of such offence of abetment except with the
previous section (a) of the Central Government in the case of a person
employed in connection with the affairs of the union, and (b) of the State
100. Random House Dictionary.
166
Government, in the case of a person employed in connection with the affairs of
a State."101
Sometimes it may be difficult to get such consent from the concerned
Government. This situation has been described by Prof. Lakshmi Devi as a
"catch". 102
Power of State Government to impose Collective Fine
10 A (l)If, after an inquiry in the prescribed manner, the government is
satisfied that the inhabitants of an area are concerned in or abetting the
commission of any offence punishable under this Act or harbouring persons
concerned in the commission of such offence or failing to render all the
assistance in their power to discover or apprehend the offender or suppressing
material evidence of the commission so such offence the state government may
by notification in the official Gazette impose a collective fine on such
inhabitants and apportion such fine amongst the inhabitants who are liable
collectively to pay it, and such appointment shall be made according the state
government judgements of the respective means of such inhabitants and in
making any such appointment, state government assign a portion of such fine
to a Hindu undivided family to be payable by it
Provided that the fine apportioned to an inhabitant shall not be realised
until the petition if any filed by him under sub-section (3) is disposed 0£
101. P.C.RAct Section 15(2).
102. Lakshmi Devi: The Protection of Civil rights Act. Some observations. (The Indian journal of social work, April 1982 ,Vol. XLIII,NO.l).
167
(2) the notification made under sub-section ( 1) shall be proclaimed in
the area by the beat of drums or in such other manner as the state government
may think best in the circumstances to bring the imposition of the collective
fine to the notice of the inhabitants of the said area
(3)(a) Any person aggrieved by the imposition of the collective fine
under sub-section (1) or by the order of appointment may, within the prescribed
period, file a petition before the state government or such other authority as
that government may specify in this behalf for being exempted from such fine
or for modification of the order of apportionment. :
provided that no fee shall be charged for filing such petition
(b) The state government or the authority specified by it shall; after
giving to the the petitioner a reasonable opportunity of being heard may pass
such order as it think fit.:
Provided that the amount of the fine exempted or reduced under the
section not be realizable from any person, and the total fine imposed on the
inhabitants of an area under sub-section (I) shall be deemed to have been
reduced to that extent.
( 4) Notwithstanding anything contained in sub-section(3) the state
government may exempt the victims of any offence punishable under this Act
or any person who does not in its opinion fall within the category of persons
specified in sub-section (I) from the liability to pay the collective fine imposed
under sub-section( I) or any portion thereof.
(5) The portion of collective fine payable by any person may be
recovered in the manner provided by the Code of Criminal Procedure 1973
168
for the recovery of fines imposed by court as if such portion were a fine
imposed by a Magistrate.
The State Government may impose collective fine, on such
inhabitants by the notification in the official Gazette, subject to
the Protection of Civil Rights Rules, 1977 103 the State
Government may appoint an Officer of the rank of a Sub-
Divisional Magistrate for holding an inquiry under the section.
Enhanced Penalty on Subsequent Conviction
11. " Whoever having already convicted of an offence under this Act or
of an abetment of such offence is again convicted of any such offence or
abetment shall on conviction be punishable -
(a) for the second offence, with imprisonment for a term of not less than
six months arid not more than one year and also with fine which shall be not
less than two hundred rupees and not more than five hundred rupees;
(b) for the third offence or any offence subsequent to the third offence,
with imprisonment for a term of not less one year and more than two years, and
103. Published in Gazette of India, Part-I, Section 3, Subsection (ii), dated 151 October 1977 p. 3477-79
169
also with fine which shall be not less than five hundred rupees and not more
than one thousand rupees."
Under this section the offenders subsequent to their first offence are
subjected to enhanced punishment. It is obligatory on the part of the courts to
award the punishment as stated under this section. This section intends to
suppress the criminal mentality of the habitual offenders.
Presumption by Courts in Certain Cases
12. " Where any act constituting an offence under this Act is
committed in relation to a member of a Scheduled Caste, the Court shall
presume unless the contrary is proved that such act was committed on the
ground of "untouchability."
This section provides "as special rule of evidence." The most essential
ingredient for constituting an offence under PCRA is that it should be
committed "on the ground ofuntouchability." It is, however, difficult to prove,
and it is felt that for a Scheduled Caste it is very difficult to prove beyond
reasonable doubt that the offence was committed on the ground of
"untouchability." It may because of his poor economic condition, inability to
collect evidence and poor legal knowledge. Therefore, the Parliament taking
into account these difficulties, has provided this section in the Act. Thus any
act constituting an offence under this Act is committed in relation to a
170
member of Scheduled Caste, the Court shall presume unless the contrary is
proved that such act was committed on the ground of "untouchability."
"A presumption means a rule of law that courts and judges shall draw a
particular inference from a particular fact or from a particular evidence, unless
and until the truth of such inference is disproved."
When there is a wording that " the court shall presume" the court
"shall" regard such fact as proved, unless and untill it is disproved. The
ordinary rule of law is that "the accused is presumed to be innocent." But when
there is specific directive in the Act itself, that the court shall presume. 105 the
ordinary rule of law in this respect is not applicable.
In Ramachandran Pillai v. State of Kerala(J964), it is held that when
an attempt of the accused to prove the contrary has failed, the presumption
arises and the court would be justified in holding that the alleged act was
committed on the ground ofuntouchability. 106
In Laxman Jayaram Shant v. Maharastra State(J980), Kanade, J.
observed that "the initial burden was on prosecution to prove that accused has
insulted complainant of a species and then burden of proof would shift on
accused, that insult was not on ground of untouchability and said 'onus' on
accused would not be so heavy to prove his case beyond reasonable
doubt." 107•
104 Thakore, D.K and Vakil, MR. The Law of Evidence, P.13, The Bombay Law Reporter Office, Bombay 1958. 13th Edition.
105 .The Indian Evidence Act, 1872, Section 4.
106. 1964 Kerala L.T .1015.
107. The Bombay cases Reporter, August 1980, Vol.2, Part VIII.
171
But Dharmadhikari J. of the same High Court observed in a similar case
that "the decision in 1980 Mah. L.J. 833 has unduly restricted the scope of
presumption comtemplated by Section 12 of this Act. If for proving an offence
under Section 7( d) of the Act, the prosecution is also required to prove the fact
that the act constituting the offence was committed on the ground of
untouchability, then the presumption contemplated by Section 12 will have no
meaning and the entire section 12 will become redundant or surpius-age 11108
According to R.G.Karmakar, "The opening clause of Section 12
reads,'Where any act constituting an offece under this Act is committed. 'The
proper meaning of this clause 'where any act constituting an offence under this
Act' would be the physical act constituting an offence under the Act only and
would not include the ingredient 'on the ground of untou~hability. 11109
The presumption may be rebutted, if the accused proves contrary. "In
other words the accused may rebut the presumption by showing a mere
preponderance of probability in his favour, it is not necessary for him to
establish his case beyond a reasonable doubt." 110
Limitation of jurisdiction of Civil Courts
13(1) No Civil court shall entertain or continue any suit or proceeding
or shall pass any decree or order or execute wholly or partially any decree or
order if the claim involved in such suit or proceeding or if the passing of such
I 08. Criminal Law Journal 872 May 1982.
109. Karrnakar,R.G.,The Protection of Civil Rights Act 1955, p.83.
I IO. Ibid, p.73.
172
decree or order or if such execution would in any way be contrary to the
provision of this Act.
(2) No court shall, in adjudicating any matter or executing any decree or
order recognize any custom or usage imposing any disability on any person on
the ground ofuntouchability.
The object of this section to withdraw the custom as a source and
sanction of untouchability. It seems that this provision is based on Article13 of
the constitution which does not allow any custom or law contrary to the
fundamental rights of the citizen.
According to the section no custom or usage which is contrary to the
object of the Act is valid. Therefore, the Act directs all the courts not to
recognize any custom or usage imposing any disability on any person on the
ground of untouchability and not to recognize any rights or duties of such
custom.
A suit by Hindus for declaration that they and their representatives
alone were exclusive entitled to use the suit property for burial and cremation
purpose being contrary to the provisions this Act cannot be maintained. lll
Thus any hotel, place of public entertainment, place of public
worship, shop, burial or cremation ground, road, rest house cannot be kept for
the exclusive use of caste Hindus. All such places would be open for all the
ex-untouchables equally with others.
111. .Souryan and another v. N. Shanmuga Slllldaram Pillai, A.LR 1973, Madras 24. 173
Offences by Companies
14(1) If the person committing an offences under this Act is a company
every person who at the time the offences was committed was in charge of and
responsible to the company for the conduct of the business of the company
shall be deemed to be guilty of the offences and shall be liable to be proceeded
against and punished accordingly.
Provided that nothing contained in this sub-section shall render any
such person liable to any punishment if he proves that the offence was
committed without his knowledge or that he exercised all due diligence to
prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section( I) where an
offence under this Act has been committed with the consent of any director or
manager secretary or other officer of the company such director manager
secretary or other office shall be deemed to be guilty of that offence and shall
be liable to be proceeded against and punished accordingly.
Explanation: For the purpose of this section
(a) "Company" means any body corporate and includes a firm or other
association of individuals; and
(b) "Director" in relation to a firm means a partner in the firm.
174
This section brings 'Company' also in the ambit of this Act. Thus all
natural and legal persons are equally made subject of this Act. The company
however cannot be punished physically as that is not an organic body as such
the "incharge" of such company is liable for punishment if an offence is
committed under this Act by such company.
Offence To Be Congni7able And Triable Summarily
15(1) Notwithstanding anything contained in the Code of Criminal
Procedure 1973 every offence punishable under this Act shall be cognisable
and every such offence except where it is punishable with imprisonment for a
minimum term exceeding three months may be tried summarily by a Judicial
Magistrate of the first class or in a Metropolitan area by a Metropolitan
Magistrate in accordance with the procedure specified in the said code.
(2) Notwithstanding anything contained in the Code of Criminal
Procedure 1973 when any public servant is alleged to have committed the
offence of abetment of an offence punishable under this Act while acting or
purporting to act in the discharge of his official duty no court shall take
cognizance of such offence of abetment except with the previous sanction.
(a) of the Central Government in the case of a person employed in
connection with the affairs of the union and
(c) of the State Government in the case of a person employed in
connection with the affairs of a state.
175
This section intends to deter and detract the orthodox touchable from
practising untouchability. The present section which stands as amended in
1976 provides that all the offences under this section are cognizable. It deletes
purposely the word "compoundable" from the original Act, denoting that the
offences under PCRA would be non-compoundable.
All the offences under this Act are cognizable. "Cognizable offence"
means a case in which a police officer may in accordance with the first
schedule or under any other law for the time being in force, arrest without
warrant. 112 This section empowers the police officer to arrest the offender
without a warrant.
It is observed in State v. Shanker Bhaurao Khirode (1959) by the
Bombay High Court that, "the criminal procedure code has not defined the
expression 'take cognizance'. The Magistrate may apply his mind and consider
a report submitted to him by the police officer under section 173 Cr.P.C. but
before it can be said that he has taken congnizance under section 190, Cr. P.C.,
it is not sufficient that he should have applied his mind to the report, but he
must do something for proceeding under the subsequent provisions of the code,
for example, under Section 200 under which the Magistrate has to examine the
complainant on taking cognizance of an offence." 113
112. The Code of Criminal Procdure 1973 Section 2( c ).
113. A.LR 1959, Bombay 437.
176
"Taking cognizance is a mental act. It is also a judicial act. Taking
cognizance ordinarily means that the concerned Magistrate has come to the
I . h h . b . d . "114 cone us1on t at t ere 1s a case to e enqmre mto.
"In order to avoid" as R.G.Karmakar observes, "frivolous prosecutions
against the officers, provision is made requiring the sanction of the Central
Government or the State Government as the case may be before such
prosecution is launched against the officers concerned." 115
In summary trails, on conviction no sentence of imprisonment for a
term exceeding three months can be passed by the court. 116
Measures to Ensure Civil Rights
15(A)(l) : Subject to such rules as the Central Government may make
in this behalf, the State Government shall take such measures as may be
necessary for ensuring that the rights arising from the abolition of
"untouchability" are made available to and are availed of by the persons
subjected to any disability arising out of "untouchability".
(2) In particular and without prejudice to the generality of the
provisions of sub-section (1) such measures may include --
114. A.LR 1964 Mysore 129, Shivgada v. Veerappa
115. Same as 109.
116. The code of Criminal Procedure 1973, Section 262(2). 177
(i) The provision of adequate facilities, including legal aid to the
persons subjected to any disability arising out of "untouchability" to
enable them to avail themselves of such rights.
(ii) The appointment of officers for initiating or exercising supervision
over prosecutions for the contravention of the provisions of this Act.
(iii) The setting up of Special Courts for the trial of offences under this
Act.
(iv) The setting up of committees at such appropriate levels as the State
Government may think fit to assist the State Government in
formulating or implementing such measures.
(v) Provision for a periodic survey of the working of the provisions of
this Act with a view to suggesting measures for the better
implementation of the provisions of this Act.
(vi) The identification of the areas where persons are under any
disability arising out of "untouchability" and adoption of such
measures as would ensure the removal of such disability from such
areas.
(3) The Central Government shall take such steps as may be necessary
to co-ordinate the measures taken by the State Government under sub-section
(1 ).
178
( 4) The Central Government shall, every year, place on the table of
each House of Parliament, a report on the measures taken by itself and by the
State Government in pursuance of the provision of this section.
The constitution is however not certain on the matter of responsibility.
So far as the making of law is concerned, the Central Government is
responsible. "117
The state list contains inter alia the subject of public health, burial or
cremation places, communications, roads, etc., markets and fairs and inns. 118
The concurrent list bears inter alia the subject of criminal law, criminal
procedure, trust or trustees, education, charitable institutions and religious
institutions119 and the Central list bears inter alia the subject of professional
education and research. 120
Probation of Offenders Act, Not to Apply
This section has been inserted by the Act 106 of 1976 so as to make the
convict punishable under this Act who has completed his fourteen years. The
probation of Offenders Act, 1958 provides that, when any person who is below
the age of 21 years is convicted of any offence he cannot be sentenced to
117.Article 35 (a) {ii) of the Constitution.
118. Seventh ScheduleListII, State List (Constitution) .Public Health 6, Burial GrmmdslO, Communication and Roads 13, Market 28 Inns 31.
119. Ibid.
120. Ibid.
179
imprisonment. The concerned Magistrate has to consider the report of the
probation officer and has to release such persons121 on probation.
Power to make rules :- Under Sec 16(8) the Central Government may
make rules to carry out the provision of this Act, subject to approval of the
Parliament.
W. INDIAN PENAL CODE, 1860
Indian Penal Code is general penal law, whereas the Protection of Civil
Rights Act, 1955 is a special law, dealing with the offences of untouchability
only. Therefore, there is no provision under IPC having direct bearing upon
the removal ofuntouchability.
However, Section 7(1A) of PCRA states that "whoever commits any
offence against the person or property of any individual as a reprisal or revenge
for his having exercised any right accruing to him by reason of the abolition of
"untouchability" under Article 17 of the Constitution, shall, where the offence
is punishable with imprisonment for a term exceeding two years, be punishable
with imprisonment for a term which shall not be less than two years and also
with fine."
Thus one who commits any offence against the person or property of
any individual as a reprisal or revenge for his having exercised Civil Rights
accruing to him by reason of abolition of 'untouchability' is punishable under
IPC. It is specifically stated that where the offence is punishable with
imprisonment for a term exceeding two years, be punishable with
imprisonment for a term which shall not be less than two years and also with
121. The Probation of offenders Act 1958 (20 of 1958). The Code of Criminal Procedure 1973, Section 360.
180
fine. Most of the offences affecting the human body and property are
punishable with imprisonment for a term exceeding two years. In all such
cases the punishment would be for a minimum term of two years or more than
that. Punishments for the offences against the persons or property are provided
under Section 302 to 462 of IPC. Besides, all other sections are also equally
applicable in respect of offences committed against the untouchables.
V. THE CODE OF CRIMINAL PROCEDURE, 1973
The Code of Criminal Procedure is also a general Code providing
general Procedure for the institution and trial of any criminal case. In respect
of removal ofuntouchability the said code provides under Section 110.
"When a judicial Magistrate of the First Class receives that there is
within his local jurisdiction a person who.
(t) habitually commits, or attempts to commit, or abets the commission
of
(i) the offence under one or more of the following Acts namely
(t) the Untouchability (Offences) Act, 1955 (22of1955)
(Now the Protection of Civil Rights Act, 1955)
Such Magistrate may, in the manner hereinafter provided require such
person to show cause why he should not be ordered to execute a bond, with
sureties, for his good behaviour for such period, not exceeding three years, as
the Magistrate think fit."
181
This section is intended to deal with ex-convicts or habitual offenders
only .It is aimed at protecting the society from dangerous persons against
perpetration of crimes by placing them under security.
VI. REPRESENTATION OF THE PEOPLE'S ACT, 1951
The Untouchability (Offences) Amendment and Miscellaneous
Provisions Act, 1973, No. 106 of 1976 has provided for an amendment in the
Representation of the People Act, 1951.
Section 21 of the said Amendment Act provides "In Section 8 of the
Representation of the People Act, 1951, in sub-section (1 ); after the words
"The Indian Penal Code, 'the words and figures' or under the Protection of Civil
Rights Act, 1955" shall be inserted.
Thus section 8 of the Representation of the People Act 1951 stands as
under:
Disqualification on conviction for certain offences.
A person convicted of an offence punishable under Section 153A or
sectionl 71E or section! 71 for sub-sec(2) or sub-sec(3) or of section 505 of
the IPC or under the protection of civil Rights Act 1955 ,or under section 225
or section 135 or clause( a) of subsection (2) of section 136 of this Act shall be
disqualified for a period of 6 yrs from the date of such conviction.
182
Notwithstanding anything in sub-section (1) and sub-section (2) a
disqualification under either sub-section shall not in the case of a person who
on the date of the conviction is a member of Parliament or the legislature of a
state , take effect until three months have elapsed from the date or ; if within
that period an appeal or application for revision is brought in respect of the
conviction or the sentence until that appeal or application is disposed of by the
court.
Accordingly, any person convicted for any offence under the
Protection of Civil Rights Act 1955 cannot contest the election for both Houses
of Parliament as well as for both the Houses of any state legislatures for a
period of six years from the date of such conviction . It is quite reasonable that
no person who commits the contempt of the constitution should be allowed to
be a member of the Parliament or state legislature formed under the
constitution.
VIL LAWS MADE BY THE STATE GOVERNMENTS
The Constitution has empowered Parliament under Article 35(a)(ii) to
make laws for prescribing punishment for those acts which are declared to be
offences under Part III - Fundamental Rights. "Untouchability" being an
offence under Article 17, Parliament has got exclusive power to make law for
prescribing punishment for the same offence. Therefore, the State Government
are no more entitled to make laws to deal with the offences of untouchability.
183
Thus the Constitution recognizes "untouchability" as a national problem for
which it intends to have a uniform and comprehensive law to be passed by the
Parliament alone. The Parliament has fulfilled its responsibility of passing
such law in 1955, in the form of "The Protection of Civil Rights Act, 1955".
Still the State Governments have retained their power to make laws for
removing religious disabilities and authorising the untouchables to enter
temples in their respective states, under Article 25(2)(b) of the Constitution.
(i) It is provided under the said Article that, nothing in this Article
"shall" prevent the state from making any law for throwing open of
Hindu religious institutions of a public character to all classes and
sections of Hindus, including Sikh, Jaina or Buddhists. "The State"
includes Central as well as State Governments.
(ii) Moreover, the subject of "religious endowments and institutions"
appears on the concurrent list.
(iii) Article 25(2)(b) is applicable to all the Hindus in general, whereas
Article 17 is applicable only to the ex-untouchables.
"Untouchability" according to Marc Galanter, "does not include
every exclusionary practice contained within the caste system, but
only those concerned with certain defined groups. The exclusionary
rights in temples enforceable prior to independence included rights
to exclude not only untouchables but also other groups whose
presence in the circumstances would amount to a pollution e.g.
Palshe Brahrnins and Lingayats. The Temple Entry provision of
Article 25 extends to all classes of Hindus, not merely to
184
"untouchables". "The practice of 'untouchability' includes exclusion
from temples, but the entire temple entry field is not pre-empted by
Article 35." 122 Thus, the state governments are constitutionally
empowered to make laws for throwing open of Hindu Temples for
all the Hindus, including Sikhs, Jaina and Buddhist.
At present the Temple Entry Acts are in force in the state of Tamil Nadu ,
Andhra Pradesh, Maharashtra, Gujrat, U.P. and Kerala. They are as under:
I.The Madras Temple Entry Authorisation Act 1947 (5of 1947) was passed
by the Madras Government in order to remove the disabilities imposed by
custom or usage on the excluded classes of Hindus regarding entry into Hindu
Temples which were open to the general Hindu Public. The Act provides
definition of the Temple .Accordingly a Temple is a place by whatever name
known ,which is dedicated to ,or for the benefit of or used as of right by the
Hindu community or any section thereof as a place of public religious worship.
According to section 3(1) of the Act all the persons who were deprived of
entering such Temples and worship therein were entitled to enter any Hindu
Temple and offer worship in general . Whoever prevents any such person
because of his so called low caste from entering any Hindu Temple or from
worshipping therein would be punishable , in the case of first offence with fine
which may extend to rupees one hundred and in the case of second and
subsequent offence with imprisonment which would extend to 6 months or
122. Galanter Marc, "Caste Disabilities and Indian Federation" (Journal of the Indian Law Institute, April- June 1961, VoL3 No.2.
185
with fine up to rupees five hundred or with both. All the offences under the Act
were cognizable.
2.The Uttar Pradesh Temple Entry (Declaration of Rights ) Act 1956
declares that all the sections of Hindus are equally entitled to religious rights
and it prohibits the court from recognising any custom, usage or practice to the
contrary. But it has not provided punishment for those who disobey the
declaration under the Act .It is merely declaratory and not penal.
2.The Bombay Hindu places of public worship (Entry authorization) Act
1956 came into operation on 1st July 1958. By virtue of the Maharastra
Adoption of Laws Order 1960, it extends throughout Maharashtra. Previously
it was extended to the state of Bombay, comprising Gujarat part or Bombay
state. Now by virtue of the Gujarat Adoption of Laws Order 1960 it extends to
the whole state of Gujarat.
It states under Section (3) that every place of public worship which is
open to Hindus generally or to any section or class thereof shall be open to all
sections and classes of Hindus and no Hindu of whatsoever section or class,
shall in any manner be prevented, obstructed or discouraged from offering
prayers thereat, or performing any religious service therein in the like manner
and to like extent as any other Hindu or whatsoever, section or class may so
enter, worship, pray or perform. This Act does recognize any distinction among
the Hindus on the ground of any denomination or section as such. It has thrown
open all the Hindus Temples for all the Hindus without any distinction.
But it has not provided for minimum punishment and gives discretion to
the court either to punish the convict with imprisonment which may extend to
six months or with fine which may extend to five hundred rupees or with both
186
Although the offences under the Act are cognizable but they are
compoundable. Therefore it can be said that this Act in not severe as compared
to the protection of Civil Rights.
4. Kerala Hindu places of public worship (Authorization of Entry ) act
1965:
Section (3) of this Act states that every place of public worship which is
open to Hindus generally or to any section or class thereof shall be open to all
sections and class of Hindus and no Hindu of whatsoever section of class shall
in any manner be prevented, obstructed from worshipping or offering prayers
or performing any religious service therein in the like manner and to the like
extent as any other Hindu of whatsoever section or class may so enter
, worship, pray, or perform. But it recognizes the identity of the religious
denomination or section thereof. Therefore, the religious rights under this Act
are subject to the right of that religious denomination or section as the case
may be, to manage its own affairs in matters of religion.
It does not provide minimum punishment. It gives discretionary power
to the courts to punish the convict with punishment which may extend to six
months or with fine which may extend to rupees five hundred or with both. The
offences under the Act are cognizable and compoundable.
Vlll ENCOURAGEMENT TO INTER-CASTE MARRIAGES
Apart from this some State Governments have adopted the measure of
giving certain amount for those couples who perform inter-caste marriage as an
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encouragement to such persons in the matter of eradication of untouchability.
Those states are, Andhra Pradesh, Bihar,Gujarat, Kamataka, Kerala, Madhya
Pradesh, Maharashtra, Orissa, Tamil Nadu, Tripura and Uttar Pradesh and the
Union Territory of Goa, Daman & Diu and Pondichery.
IX DISQUALIFICATION FROM MEMBERSHIP OF ELECTED
BODIES
It appears on the Report of the Commission for S.C. and S.T. for the
year 1978-79 that the State Government were requested to amend the
concerned laws for disqualifying a person convicted of an offence under the
PCA Act from contesting elections to Municipal Bodies and the Panchayat Raj
Institutions on the line of Representation of People's Act, 1951.123 It is learnt
that the Gujarat State maintains a separate list of persons convicted under the
PCR Act and they are not appointed in any Committee, Board or Corporation
which may be constituted at the District and State level. 124 The Government of
Andhra Pradesh Samiti and Zilla Parishad Act and Municipalities Act
according to which a person convicted under the PCR Act is disqualified to
contest election to all such bodies during the sentence and for,a period of five
years from the date of expiry of such sentence. 125 The Government of
Maharashtra also has made similar provisions in the Bombay Village
Panchayat's Act, 1958 [Section 14(ii)] and in the Maharashtra Zilla Parishads
and Panchayat Samitis Act, 1961[Section16(ii) and 58(1)A].
123. Report of the Commission for SC and ST 1978-79, p. 58.
124. Report of the Commissioner for SC and ST 1978-79, p. 192.
188
X. CONCLUSION
(1) The Constitution, so far as the provisions regarding abolition of
untouchability and advancement of the ex-untouchables are concerned, is
ambiguous one.
(a) It d~clares untouchability an offence punishable by law, but fails to
define the very offence itself Unless the offence is defined, it is
difficult to determine whether the offence was committed or not.
(b) It contemplates advancement of the backward classes, but neither it
defines backward class or the Scheduled Castes nor it provides any
specific criteria for such classification.
( c) The provisions which enable the State for making any special
provision for the advancement of the backward classes are
ambiguous and most of them are not mandatory.
( d) "The State" is a ambiguous term giving rise to confusion and
uncertainty. It becomes difficult to locate the responsibility of the
advancement of the Scheduled Classes, there is no reference to the
advancement of the ex-untouchables in either of the three lists.
189
(2) The Protection of Civil Rights Act is equally ambiguous and
defective as the Constitution. The amending Act 106 of 1976 made it more
appropriate but still it contains flaws.
(a) Like the Constitution, the PCR Act also fails to provide the
definition of "untouchability". It does not define "on the ground of
untouchability" phrase. This has, however, added to ambiguity and
created a dilemma whether mens rea be viewed as an important
ingredient of the offence or not.
(b) The word 'domination' has been deleted in 1976, but still there
appears "section" in Section 3 of the Act. It gives rise to confusion
whether it maintains status quo in respect of sectional rights.
( c) 'The place' under Section 4 of PCR Act is qualified by "public
resort", as such it is exclusive of private place, whether the meaning
given to "the place" under Sections 2 and 4 of the Acts is not
similar?
( d) The Punishment provided under the Acts seems to be inadequate to
deter the prospective offenders. Moreover it fails to state
specifically whether the punishment shall be rigorous or simple one.
(e) It contemplates "insult" in respect of Scheduled Castes but not of
the Scheduled Castes converts to Christianity or Buddhism.
(t) The principle of 'presumption' is applicable only to Scheduled Caste
complainant and not to the converts to other religions.
(g) The provision of'Collective Fine' is undesirable and unreasonable.
190
It seems that there are some flaws in the provision dealing with collective
fine.
(i) It is not certain that all the inhabitants occupying a particular area are
involved in the commission of the offence under this Act. It is not defined
as to who are inhabitants. Thus without taking into account the complex
nature of the inhabitants, simply on the ground that they belong to a
particular area where the offenders under this Act reside may not be a
reasonable ground on which they should be subjected to punishments
(ii) Any person aggrieved by the imposition of collective fine may within
the prescribed period, file a petition before the State Government for
being exempted from such fine. If such person happens to be innocent
why he should undergo a lengthy procedure unnecessarily.
(iii) It is stated that the State Government may take into account the
"respective means of such inhabitants" for levying collective fine. Then
whether it is 'collective fine or 'individual fine'?
(h) The provision of summary trial, if applied would be an obstacle in the
way of judges in awarding punishment for a period more than three
months.
3. It is but admirable that the Representation of People's Act, 1951, as
amended by 106 of 1976 renders the convict under PCR Act ineligible to
contest the election for six years from the date of conviction.
191